EXHIBIT 4
==============================================================================
BANC OF AMERICA MORTGAGE SECURITIES, INC.,
as Depositor,
BANK OF AMERICA, N.A.,
as Servicer,
and
WELLS FARGO BANK, N.A.,
as
Trustee
POOLING AND SERVICING AGREEMENT
Dated December 29, 2004
_______________________
Mortgage Pass-Through Certificates
Series 2004-11
==============================================================================
<PAGE>
TABLE OF CONTENTS
PRELIMINARY
STATEMENT......................................................
ARTICLE I
DEFINITIONS
Section 1.01 Defined
Terms................................................
Section 1.02 Interest
Calculations........................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage
Loans.................................
Section 2.02 Acceptance by the Trustee of the
Mortgage Loans..............
Section 2.03 Representations, Warranties and
Covenants of the Servicer....
Section 2.04 Representations and Warranties of
the Depositor as to the
Mortgage Loans..............................................
Section 2.05 Designation of Interests in the
REMICs.......................
Section 2.06 Designation of Start-up
Day..................................
Section 2.07 REMIC Certificate Maturity
Date..............................
Section 2.08 Execution and Delivery of
Certificates.......................
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage
Loans...........................
Section 3.02 Subservicing; Enforcement of the
Obligations of Servicer.....
Section 3.03 Fidelity Bond; Errors and
Omissions Insurance................
Section 3.04 Access to Certain
Documentation..............................
Section 3.05 Maintenance of Primary Insurance
Policy; Claims;
Collections of BPP Mortgage Loan Payments...................
Section 3.06 Rights of the Depositor and the
Trustee in Respect of the
Servicer....................................................
Section 3.07 Trustee to Act as
Servicer...................................
Section 3.08 Collection of Mortgage Loan
Payments; Servicer Custodial
Account; and Certificate Account............................
Section 3.09 Collection of Taxes, Assessments
and Similar Items;
Escrow Accounts.............................................
Section 3.10 Access to Certain Documentation
and Information Regarding
the Mortgage Loans..........................................
Section 3.11 Permitted Withdrawals from the
Servicer Custodial Account
and Certificate Account.....................................
Section 3.12 Maintenance of Hazard
Insurance..............................
Section 3.13 Enforcement of Due-On-Sale
Clauses; Assumption Agreements....
Section 3.14 Realization Upon Defaulted
Mortgage Loans; REO Property......
Section 3.15 Trustee to Cooperate; Release of
Mortgage Files..............
Section 3.16 Documents, Records and Funds in
Possession of the
Servicer to be Held for the Trustee.........................
Section 3.17 Servicing
Compensation.......................................
Section 3.18 Annual Statement as to
Compliance............................
Section 3.19 Annual Independent Public
Accountants' Servicing
Statement; Financial Statements.............................
Section 3.20
Advances.....................................................
Section 3.21 Modifications, Waivers, Amendments
and Consents..............
Section 3.22 Reports to the Securities and
Exchange Commission............
Section 3.23 Buy-Down Account; Application of
Buy-Down Funds..............
ARTICLE IV
SERVICER'S CERTIFICATE
Section 4.01 Servicer's
Certificate.......................................
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01
Distributions................................................
Section 5.02 Priorities of
Distributions..................................
Section 5.03 Allocation of
Losses.........................................
Section 5.04 Statements to
Certificateholders.............................
Section 5.05 Tax Returns and Reports to
Certificateholders................
Section 5.06 Tax Matters
Person...........................................
Section 5.07 Rights of the Tax Matters Person
in Respect of the Trustee...
Section 5.08 REMIC Related
Covenants......................................
Section 5.09 Determination of
LIBOR.......................................
ARTICLE VI
THE CERTIFICATES
Section 6.01 The
Certificates.............................................
Section 6.02 Registration of Transfer and
Exchange of Certificates........
Section 6.03 Mutilated, Destroyed, Lost or
Stolen Certificates............
Section 6.04 Persons Deemed
Owners........................................
ARTICLE VII
THE DEPOSITOR AND THE SERVICER
Section 7.01 Respective Liabilities of the
Depositor and the Servicer......
Section 7.02 Merger or Consolidation of the
Depositor or the Servicer......
Section 7.03 Limitation on Liability of the
Depositor, the Servicer
and Others..................................................
Section 7.04 Depositor and Servicer Not to
Resign.........................
ARTICLE VIII
DEFAULT
Section 8.01 Events of
Default............................................
Section 8.02 Remedies of
Trustee..........................................
Section 8.03 Directions by Certificateholders
and Duties of Trustee
During Event of Default.....................................
Section 8.04 Action upon Certain Failures of
the Servicer and upon
Event of Default............................................
Section 8.05 Trustee to Act; Appointment of
Successor.....................
Section 8.06 Notification to
Certificateholders...........................
ARTICLE IX
THE TRUSTEE
Section 9.01 Duties of
Trustee............................................
Section 9.02 Certain Matters Affecting the
Trustee........................
Section 9.03 Trustee Not Liable for
Certificates or Mortgage Loans........
Section 9.04 Trustee May Own
Certificates.................................
Section 9.05 Eligibility Requirements for
Trustee.........................
Section 9.06 Resignation and Removal of
Trustee...........................
Section 9.07 Successor
Trustee............................................
Section 9.08 Merger or Consolidation of
Trustee...........................
Section 9.09 Appointment of Co-Trustee or
Separate Trustee................
Section 9.10 Authenticating
Agents........................................
Section 9.11 Trustee's Fees and
Expenses..................................
Section 9.12 Appointment of
Custodian.....................................
Section 9.13 Paying
Agents................................................
Section 9.14 Limitation of
Liability......................................
Section 9.15 Trustee May Enforce Claims Without
Possession of
Certificates................................................
Section 9.16 Suits for
Enforcement........................................
Section 9.17 Waiver of Bond
Requirement...................................
Section 9.18 Waiver of Inventory, Accounting
and Appraisal Requirement....
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase by
the Depositor or Liquidation
of All Mortgage Loans.......................................
Section 10.02 Additional Termination
Requirements..........................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01
Amendment....................................................
Section 11.02 Recordation of
Agreement.....................................
Section 11.03 Limitation on Rights of
Certificateholders...................
Section 11.04 Governing
Law................................................
Section 11.05
Notices......................................................
Section 11.06 Severability of
Provisions...................................
Section 11.07 Certificates Nonassessable
and Fully Paid....................
Section 11.08 Access to List of
Certificateholders.........................
Section 11.09
Recharacterization...........................................
<PAGE>
EXHIBITS
Exhibit A-1-A-1...- Form of Face of
Class 1-A-1 Certificate
Exhibit A-1-A-2...- Form of Face of
Class 1-A-2 Certificate
Exhibit A-1-A-3...- Form of Face of
Class 1-A-3 Certificate
Exhibit A-1-A-4...- Form of Face of
Class 1-A-4 Certificate
Exhibit A-1-A-5...- Form of Face of
Class 1-A-5 Certificate
Exhibit A-1-A-6...- Form of Face of
Class 1-A-6 Certificate
Exhibit A-1-A-7...- Form of Face of
Class 1-A-7 Certificate
Exhibit A-1-A-8...- Form of Face of
Class 1-A-8 Certificate
Exhibit A-1-A-9...- Form of Face of
Class 1-A-9 Certificate
Exhibit A-1-A-10..- Form of Face of
Class 1-A-10 Certificate
Exhibit A-1-A-11..- Form of Face of
Class 1-A-11 Certificate
Exhibit A-1-A-12..- Form of Face of
Class 1-A-12 Certificate
Exhibit A-1-A-13..- Form of Face of
Class 1-A-13 Certificate
Exhibit A-1-A-14..- Form of Face of
Class 1-A-14 Certificate
Exhibit A-1-A-15..- Form of Face of
Class 1-A-15 Certificate
Exhibit A-1-A-16..- Form of Face of
Class 1-A-16 Certificate
Exhibit A-1-A-R...- Form of Face of
Class 1-A-R Certificate
Exhibit A-1-A-MR..- Form of Face of
Class 1-A-MR Certificate
Exhibit A-1-A-LR..- Form of Face of
Class 1-A-LR Certificate
Exhibit A-2-A-1...- Form of Face of
Class 2-A-1 Certificate
Exhibit A-2-A-2...- Form of Face of
Class 2-A-2 Certificate
Exhibit A-30-IO...- Form of Face of
Class 30-IO Certificate
Exhibit A-3-A-1...- Form of Face of
Class 3-A-1 Certificate
Exhibit A-20-IO...- Form of Face of
Class 20-IO Certificate
Exhibit A-4-A-1...- Form of Face of
Class 4-A-1 Certificate
Exhibit A-15-PO...- Form of Face of
Class 15-PO Certificate
Exhibit A-15-IO...- Form of Face of
Class 15-IO Certificate
Exhibit A-5-A-1...- Form of Face of
Class 5-A-1 Certificate
Exhibit A-5-PO....- Form of Face of
Class 5-PO Certificate
Exhibit A-5-IO....- Form of Face of
Class 5-IO Certificate
Exhibit A-X-PO....- Form of Face of
Class X-PO Certificate
Exhibit B-X-B-1...- Form of Face of
Class X-B-1 Certificate
Exhibit B-X-B-2...- Form of Face of
Class X-B-2 Certificate
Exhibit B-X-B-3...- Form of Face of
Class X-B-3 Certificate
Exhibit B-X-B-4...- Form of Face of
Class X-B-4 Certificate
Exhibit B-X-B-5...- Form of Face of
Class X-B-5 Certificate
Exhibit B-X-B-6...- Form of Face of
Class X-B-6 Certificate
Exhibit B-2-B-1...- Form of Face of
Class 2-B-1 Certificate
Exhibit B-2-B-2...- Form of Face of
Class 2-B-2 Certificate
Exhibit B-2-B-3...- Form of Face of
Class 2-B-3 Certificate
Exhibit B-2-B-4...- Form of Face of
Class 2-B-4 Certificate
Exhibit B-2-B-5...- Form of Face of
Class 2-B-5 Certificate
Exhibit B-2-B-6...- Form of Face of
Class 2-B-6 Certificate
Exhibit B-5-B-1...- Form of Face of
Class 5-B-1 Certificate
Exhibit B-5-B-2...- Form of Face of
Class 5-B-2 Certificate
Exhibit B-5-B-3...- Form of Face of
Class 5-B-3 Certificate
Exhibit B-5-B-4...- Form of Face of
Class 5-B-4 Certificate
Exhibit B-5-B-5...- Form of Face of
Class 5-B-5 Certificate
Exhibit B-5-B-6...- Form of Face of
Class 5-B-6 Certificate
Exhibit C Form of
Reverse of all Certificates.........................
Exhibit D-1 Mortgage Loan Schedule
(Loan Group 1).......................
Exhibit D-2 Mortgage Loan Schedule
(Loan Group 2).......................
Exhibit D-3 Mortgage Loan Schedule
(Loan Group 3).......................
Exhibit D-4 Mortgage Loan Schedule
(Loan Group 4).......................
Exhibit D-5 Mortgage Loan Schedule
(Loan Group 5).......................
Exhibit E Request
for Release of Documents............................
Exhibit F Form of
Certification of Establishment of Account...........
Exhibit G-1 Form of Transferor's
Certificate............................
Exhibit G-2A Form 1 of Transferee's
Certificate..........................
Exhibit G-2B Form 2 of Transferee's
Certificate..........................
Exhibit H Form of
Transferee Representation Letter
for ERISA Restricted Certificates...........................
Exhibit I Form of
Affidavit Regarding Transfer of Residual
Certificates................................................
Exhibit J Contents of Servicing
File..................................
Exhibit K Form of
Special Servicing Agreement.........................
Exhibit L List of
Recordation States..................................
Exhibit M Form of
Initial Certification...............................
Exhibit N Form of
Final Certification.................................
Exhibit O Form of
Certification.......................................
Exhibit P Form of
Trustee's Certification.............................
<PAGE>
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated December 29, 2004,
is
hereby executed by and among BANC OF
AMERICA MORTGAGE SECURITIES, INC., as
depositor (together with its permitted
successors and assigns, the "Depositor"),
BANK OF AMERICA, N.A., as servicer
(together with its permitted successors and
assigns, the "Servicer"), and WELLS FARGO
BANK, N.A., as trustee (together with
its permitted successors and assigns, the
"Trustee").
W I T N E S S E T H T H A T:
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer and the Trustee
agree as follows:
PRELIMINARY STATEMENT
In exchange for the Certificates, the Depositor hereby conveys
the
Trust Estate to the Trustee to create the
Trust. The Trust Estate for federal
income tax purposes will be treated as
three separate real estate mortgage
investment conduits (the "Upper-Tier
REMIC," the "Middle-Tier REMIC" and the
"Lower-Tier REMIC," respectively, and each,
a "REMIC"). The Class A Certificates
(other than the Class 1-A-R, Class 1-A-MR,
Class 1-A-LR, Class X-PO and Class
30-IO Certificates) and the Class X-B,
Class 2-B and Class 5-B Certificates are
referred to collectively as the "Regular
Certificates" and shall constitute
"regular interests" in the Upper-Tier
REMIC. The Class 1-X-PO Component, Class
2-X-PO Component, Class 3-X-PO Component,
Class 1-30-IO Component and Class
2-30-IO Component (collectively, the
"Components") shall also constitute
"regular interests" in the Upper-Tier
REMIC. The Uncertificated Middle-Tier
Interests shall constitute the "regular
interests" in the Middle-Tier REMIC. The
Uncertificated Lower-Tier Interests shall
constitute the "regular interests" in
the Lower-Tier REMIC. The Class 1-A-R
Certificate shall be the "residual
interest" in the Upper-Tier REMIC, the
Class 1-A-MR Certificate shall be the
"residual interest" in the Middle-Tier
REMIC and the Class 1-A-LR Certificate
shall be the "residual interest" in the
Lower-Tier REMIC. The Certificates, the
Uncertificated Lower-Tier Interests and the
Uncertificated Middle-Tier Interests
will represent the entire beneficial
ownership interest in the Trust. The
"latest possible maturity date" for federal
income tax purposes of all interests
created hereby will be the REMIC
Certificate Maturity Date.
The following table sets forth characteristics of the
Certificates
and the Components, together with the
minimum denominations and integral
multiples in excess thereof in which the
Classes of Certificates shall be
issuable:
Initial Class
Integral
Certificate
Pass-
Multiples
Balance or
Through Minimum
in Excess
Classes
Notional Amount Rate
Denomination of Minimum
------------
--------------- ------
------------ ----------
Class 1-A-1
$19,758,000.00
5.500% $1,000
$1
Class 1-A-2
$241,000.00
5.500% $1,000
$1
Class 1-A-3
$147,466,000.00
5.500% $1,000
$1
Class 1-A-4
$8,536,000.00
5.250% $1,000
$1
Class 1-A-5
$3,000,000.00
5.500% $1,000
$1
Class 1-A-6
$3,000,000.00
5.500% $1,000
$1
Class 1-A-7
$4,000,000.00
5.500% $1,000
$1
Class 1-A-8
$7,000,000.00
5.500% $1,000
$1
Class 1-A-9
$388,000.00
5.500% $388,000
N/A
Class 1-A-10
$24,486,000.00
5.250% $1,000
$1
Class 1-A-11
$16,100,000.00
5.500% $1,000
$1
Class 1-A-12
$1,113,000.00
5.500% $1,000,000
$1
Class 1-A-13
$100,000,000.00
5.250% $1,000
$1
Class 1-A-14
$10,000,000.00
(1)
$1,000
$1
Class 1-A-15
$10,000,000.00
(2)
$1,000,000
$1
Class 1-A-16
$197,000.00
5.500% $1,000
$1
Class 1-A-R
$50.00 5.500% $50
N/A
Class 1-A-MR
$25.00
5.500% $25
N/A
Class 1-A-LR
$25.00
5.500% $25
N/A
Class 2-A-1
$119,688,000.00
5.750% $1,000
$1
Class 2-A-2
$2,439,000.00
5.750% $1,000
$1
Class 30-IO
(3)
(3)
$1,000,000
$1
Class 3-A-1
$16,659,000.00
5.750% $1,000
$1
Class 20-IO
$270,644.00
5.750% $270,644
N/A
Class 4-A-1
$55,446,000.00
5.000% $1,000
$1
Class 15-IO
$1,599,470.00
5.000% $1,000,000
$1
Class 15-PO
$202,734.00
(4)
$25,000
$1
Class 5-A-1
$78,068,000.00
6.500% $1,000
$1
Class 5-IO
$980,096.00
6.500% $980,096
N/A
Class 5-PO
$1,486,003.00
(4)
$25,000
$1
Class X-PO
(5)
(5)
$25,000
$1
Class X-B-1
$7,311,000.00
(6)
$25,000
$1
Class X-B-2
$1,935,000.00
(6)
$25,000
$1
Class X-B-3
$1,290,000.00
(6)
$25,000
$1
Class X-B-4
$645,000.00
(6)
$25,000
$1
Class X-B-5
$645,000.00
(6)
$25,000
$1
Class X-B-6
$644,967.00
(6)
$25,000
$1
Class 2-B-1
$2,054,000.00
5.750% $25,000
$1
Class 2-B-2
$707,000.00
5.750% $25,000
$1
Class 2-B-3
$449,000.00
5.750% $25,000
$1
Class 2-B-4
$321,000.00
5.750% $25,000
$1
Class 2-B-5
$257,000.00
5.750% $25,000
$1
Class 2-B-6
$192,707.00
5.750% $25,000
$1
Class 5-B-1
$1,391,000.00
6.500% $25,000
$1
Class 5-B-2
$327,000.00
6.500% $25,000
$1
Class 5-B-3
$205,000.00
6.500% $25,000
$1
Class 5-B-4
$123,000.00
6.500% $25,000
$1
Class 5-B-5
$163,000.00
6.500% $25,000
$1
Class 5-B-6
$82,730.00
6.500% $25,000
$1
Initial Component
Integral
Balance or
Pass-
Multiples
Component
Through Minimum
in Excess
Components
Notional Amount Rate
Denomination of Minimum
------------
--------------- ------
------------ ----------
Class 1-X-PO
$1,257,841.00
(7)
N/A
N/A
Class 2-X-PO
$2,274,830.00
(7)
N/A
N/A
Class 3-X-PO
$151,890.00
(7) N/A
N/A
Class 1-30-IO
$8,839,580.00
5.500% N/A
N/A
Class 2-30-IO
$1,487,846.00
5.500% N/A
N/A
(1) During
the initial Interest Accrual Period, interest will accrue on
the Class 1-A-14 Certificates at the rate
of 2.810% per annum. During each
Interest Accrual Period thereafter,
interest will accrue on the Class 1-A-14
Certificates at a per annum rate equal to
(i) 0.400% plus (ii) LIBOR, subject to
a minimum rate of 0.400% and a maximum rate
of 8.000%.
(2) During
the initial Interest Accrual Period, interest will accrue on
the Class 1-A-15 Certificates at the rate
of 5.190% per annum. During each
Interest Accrual Period thereafter,
interest will accrue on the Class 1-A-15
Certificates at a per annum rate equal to
(i) 7.600% minus (ii) LIBOR, subject
to a minimum rate of 0.000% and a maximum
rate of 7.600%.
(3) The
Class 30-IO Certificates will be deemed for purposes of the
distribution of interest to consist of two
components described in the table.
The Components are not severable.
(4) The
Class 15-PO and Class 5-PO Certificates are Principal Only
Certificates and will not be entitled to
distributions of interest.
(5) The
Class X-PO Certificates will be deemed for purposes of the
distribution of principal to consist of
three components described in the table.
The Components are not severable.
(6)
Interest will accrue on the Class X-B Certificates as of any
Distribution Date at a per annum rate equal
to the weighted average (based on
the Group Subordinate Amount for each Loan
Group) of (i) with respect to Loan
Group 1, 5.500%, (ii) with respect to Loan
Group 3, 5.750% and (iii) with
respect to Loan Group 4, 5.000%.
(7) The
Class 1-X-PO and Class 3-X-PO Components will be principal-only
Components and will not bear interest.
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement,
the
following words and phrases, unless the
context otherwise requires, shall have
the meanings specified in this Article:
1933 Act: The Securities Act of 1933, as amended.
Accretion Termination Date: The earlier to occur of (A) the
Distribution Date following the
Distribution Date on which the Class Certificate
Balance of the Class 1-A-10 Certificates
has been reduced to zero or (B) the
Senior Credit Support Depletion Date for
Group 1.
Accrued Certificate Interest: For any Distribution Date and
each
interest-bearing Class (other than the
Class 30-IO Certificates), one month's
interest accrued during the related
Interest Accrual Period at the applicable
Pass-Through Rate on the applicable Class
Certificate Balance or Notional
Amount. For any Distribution Date and the
Class 30-IO Certificates, the sum of
the Accrued Component Interest for each
Class 30-IO Component.
Accrued Component Interest: For any Distribution Date and each
Class
30-IO Component, one month's interest
accrued during the related Interest
Accrual Period at the applicable
Pass-Through Rate on the applicable Notional
Amount.
Adjusted Pool Amount: With respect to any Distribution Date and
Loan
Group, the Cut-off Date Pool Principal
Balance of the Mortgage Loans in such
Loan Group minus the sum of (i) all amounts
in respect of principal received in
respect of the Mortgage Loans in such Loan
Group (including, without limitation,
amounts received as Monthly Payments,
Periodic Advances, Principal Prepayments,
Liquidation Proceeds and Substitution
Adjustment Amounts) and distributed to
Holders of the Certificates of the Related
Group on such Distribution Date and
all prior Distribution Dates and (ii) the
principal portion of all Realized
Losses (other than Debt Service Reductions)
incurred on the Mortgage Loans in
such Loan Group from the Cut-off Date
through the end of the month preceding
such Distribution Date.
Adjusted Pool Amount (Non-PO Portion): With respect to any
Distribution Date and Loan Group, the
difference between the Adjusted Pool
Amount and the Adjusted Pool Amount (PO
Portion).
Adjusted Pool Amount (PO Portion): With respect to any
Distribution
Date and Loan Group, the sum of the
amounts, calculated as follows, with respect
to all Outstanding Mortgage Loans of such
Loan Group: the product of (i) the PO
Percentage for each such Mortgage Loan and
(ii) the remainder of (A) the Cut-off
Date Principal Balance of such Mortgage
Loan minus (B) the sum of (x) all
amounts in respect of principal received in
respect of such Mortgage Loan
(including, without limitation, amounts
received as Monthly Payments, Periodic
Advances, Principal Prepayments,
Liquidation Proceeds and Substitution
Adjustment Amounts) and distributed to
Holders of the Certificates of the
Related Group on such Distribution Date and
all prior Distribution Dates and (y)
the principal portion of any Realized Loss
(other than a Debt Service Reduction)
incurred on such Mortgage Loan from the
Cut-off Date through the end of the
month preceding such Distribution Date.
Advance: A Periodic Advance or a Servicing Advance.
Agreement: This Pooling and Servicing Agreement together with
all
amendments hereof and supplements
hereto.
Amount Held for Future Distribution: As to any Distribution Date
and
Loan Group, the total of the amounts held
in the Servicer Custodial Account at
the close of business on the preceding
Determination Date on account of (i)
Principal Prepayments and Liquidation
Proceeds received or made on the Mortgage
Loans in such Loan Group in the month of
such Distribution Date and (ii)
payments which represent receipt of Monthly
Payments on the Mortgage Loans in
such Loan Group in respect of a Due Date or
Due Dates subsequent to the related
Due Date.
Ancillary Income: All assumption fees, late payment charges and
all
other ancillary income and fees with
respect to the Mortgage Loans.
Appraised Value: With respect to any Mortgaged Property, either
(i)
the lesser of (a) the appraised value
determined in an appraisal obtained by the
originator at origination of such Mortgage
Loan and (b) the sales price for such
property, except that, in the case of
Mortgage Loans the proceeds of which were
used to refinance an existing mortgage
loan, the Appraised Value of the related
Mortgaged Property is the appraised value
thereof determined in an appraisal
obtained at the time of refinancing, or
(ii) the appraised value determined in
an appraisal made at the request of a
Mortgagor subsequent to origination in
order to eliminate the Mortgagor's
obligation to keep a Primary Insurance Policy
in force.
Assignment of Mortgage: An individual assignment of the
Mortgage,
notice of transfer or equivalent instrument
in recordable form, sufficient under
the laws of the jurisdiction wherein the
related Mortgaged Property is located
to give record notice of the sale of the
Mortgage.
Authenticating Agents: As defined in Section 9.10.
Bank of America: Bank of America, N.A., a national banking
association, or its successor in
interest.
Book-Entry Certificate: Any Class of Certificates other than
the
Physical Certificates.
BPP Mortgage Loan: Any Mortgage Loan which includes a Borrowers
Protection Plan(R) addendum to the related
Mortgage Note whereby Bank of America
agrees to cancel (i) certain payments of
principal and interest on such Mortgage
Loan for up to twelve months upon the
disability or involuntary unemployment of
the Mortgagor or (ii) the outstanding
principal balance of the Mortgage Loan
upon the accidental death of the Mortgagor;
provided that such Borrowers
Protection Plan(R) has not been terminated
in accordance with its terms.
BPP Mortgage Loan Payment: With respect to any BPP Mortgage
Loan,
the Monthly Covered Amount or Total Covered
Amount, if any, payable by Bank of
America pursuant to Section 5 of the
Mortgage Loan Purchase Agreement.
Business Day: Any day other than (i) a Saturday or a Sunday or
(ii)
a day on which banking institutions in the
State of North Carolina, the State of
New York, the State of Minnesota, the state
in which the servicing offices of
the Servicer is located or the state in
which the Corporate Trust Office is
located are required or authorized by law
or executive order to be closed.
Buy-Down Account: The separate Eligible Account or Accounts
created
and maintained by the Servicer pursuant to
Section 3.23.
Buy-Down Agreement: An agreement governing the application of
Buy-Down Funds with respect to a Buy-Down
Mortgage Loan.
Buy-Down Funds: Money advanced by a builder, seller or other
interested party to reduce a Mortgagor's
monthly payment during the initial
years of a Buy-Down Mortgage Loan.
Buy-Down Mortgage Loan: Any Mortgage Loan in respect of which,
pursuant to a Buy-Down Agreement, the
monthly interest payments made by the
related Mortgagor will be less than the
scheduled monthly interest payments on
such Mortgage Loan, with the resulting
difference in interest payments being
provided from Buy-Down Funds.
Calculated Principal Distribution: As defined in Section
5.03(d).
Certificate: Any of the Banc of America Mortgage Securities,
Inc.,
Mortgage Pass-Through Certificates, Series
2004-11 that are issued pursuant to
this Agreement.
Certificate Account: The Eligible Account created and maintained
by
the Trustee pursuant to Section 3.08(c) in
the name of the Trustee for the
benefit of the Certificateholders and
designated "Wells Fargo Bank, N.A., in
trust for registered holders of Banc of
America Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series
2004-11." The Certificate Account
shall be deemed to consist of seven
sub-accounts; one for each Group, a sixth
sub-account referred to herein as the
Upper-Tier Certificate Sub-Account and a
seventh sub-account referred to herein as
the Middle-Tier Certificate
Sub-Account. Funds in the Certificate
Account shall be held in trust for the
Holders of the Certificates of such Group
for the uses and purposes set forth in
this Agreement.
Certificate Balance: With respect to any Certificate at any
date,
the maximum dollar amount of principal to
which the Holder thereof is then
entitled hereunder, such amount being equal
to the product of the Percentage
Interest of such Certificate and the Class
Certificate Balance of the Class of
Certificates of which such Certificate is a
part.
Certificate Custodian: Initially, Wells Fargo Bank, N.A.;
thereafter
any other Certificate Custodian acceptable
to the Depository and selected by the
Trustee.
Certificate Owner: With respect to a Book-Entry Certificate,
the
Person who is the beneficial owner of a
Book-Entry Certificate. With respect to
any Definitive Certificate, the
Certificateholder of such Certificate.
Certificate Register: The register maintained pursuant to
Section
6.02.
Certificate Registrar: The registrar appointed pursuant to
Section
6.02.
Certificateholder: The Person in whose name a Certificate is
registered in the Certificate Register,
except that, solely for the purpose of
giving any consent pursuant to this
Agreement, any Certificate registered in the
name of the Depositor, the Servicer or any
affiliate thereof shall be deemed not
to be outstanding and the Percentage
Interest and Voting Rights evidenced
thereby shall not be taken into account in
determining whether the requisite
amount of Percentage Interests or Voting
Rights, as the case may be, necessary
to effect any such consent has been
obtained, unless such entity is the
registered owner of the entire Class of
Certificates, provided that the Trustee
shall not be responsible for knowing that
any Certificate is registered in the
name of such an affiliate unless one of its
Responsible Officers has actual
knowledge.
Certification: As defined in Section 3.22(b).
Class: As to the Certificates, the Class 1-A-1, Class 1-A-2,
Class
1-A-3, Class 1-A-4, Class 1-A-5, Class
1-A-6, Class 1-A-7, Class 1-A-8, Class
1-A-9, Class 1-A-10, Class 1-A-11, Class
1-A-12, Class 1-A-13, Class 1-A-14,
Class 1-A-15, Class 1-A-16, Class 1-A-R,
Class 1-A-MR, Class 1-A-LR, Class
2-A-1, Class 2-A-2, Class 30-IO, Class
3-A-1, Class 20-IO, Class 4-A-1, Class
15-IO, Class 15-PO, Class 5-A-1, Class
5-IO, Class 5-PO, Class X-PO, Class
X-B-1, Class X-B-2, Class X-B-3, Class
X-B-4, Class X-B-5, Class X-B-6, Class
2-B-1, Class 2-B-2, Class 2-B-3, Class
2-B-4, Class 2-B-5, Class 2-B-6, Class
5-B-1, Class 5-B-2, Class 5-B-3, Class
5-B-4, Class 5-B-5 and Class 5-B-6, as
the case may be.
Class 1-30-IO Notional Amount: As to any Distribution Date and
the
Class 1-30-IO Component, the product of (i)
the aggregate Stated Principal
Balance of the Group 1 Premium Mortgage
Loans on the Due Date in the month
preceding the month of such Distribution
Date and (ii) a fraction, (a) the
numerator of which is equal to the weighted
average of the Net Mortgage Interest
Rates of the Group 1 Premium Mortgage Loans
(based on the Stated Principal
Balances of the Group 1 Premium Mortgage
Loans as of the Due Date in the month
preceding the month of such Distribution
Date) minus 5.500% and (b) the
denominator of which is equal to
5.500%.
Class 1-A-1 Loss Amount: With respect to any Distribution Date
after
the Senior Credit Support Depletion Date
for Group 1, the amount, if any, by
which the Class Certificate Balance of the
Class 1-A-1 Certificates would be
reduced as a result of the allocation of
any reduction pursuant to Section
5.03(b) to such Class, without regard to
the operation of Section 5.03(e).
Class 1-A-2 Loss Allocation Amount: With respect to any
Distribution
Date after the Senior Credit Support
Depletion Date for Group 1, the lesser of
(a) the Class Certificate Balance of the
Class 1-A-2 Certificates with respect
to such Distribution Date prior to any
reduction for the Class 1-A-2 Loss
Allocation Amount and (b) the Class 1-A-1
Loss Amount with respect to such
Distribution Date.
Class 1-A-9 Notional Amount: As to any Distribution Date and
the
Class 1-A-9 Certificates, 4.5454545455% of
the Class Certificate Balance of the
Class 1-A-4 Certificates.
Class 1-A-11 Accrual Distribution Amount: For any Distribution
Date
and the Class 1-A-11 Certificates prior to
the Accretion Termination Date, an
amount with respect to such Class equal to
the sum of (i) the amount allocated
but not currently distributable as interest
to such Class pursuant to Section
5.02(a)(ii) that is attributable to clause
(i) of the definition of "Interest
Distribution Amount," and (ii) the amount
allocated but not currently
distributable as interest to such Class
pursuant to Section 5.02(a)(ii) that is
attributable to clause (ii) of the
definition of "Interest Distribution Amount."
Class 1-A-11 Loss Amount: With respect to any Distribution Date
after the Senior Credit Support Depletion
Date for Group 1, the amount, if any,
by which the Class Certificate Balance of
the Class 1-A-11 Certificates would be
reduced as a result of the allocation of
any reduction pursuant to Section
5.03(b) to such Class, without regard to
the operation of Section 5.03(e).
Class 1-A-12 Notional Amount: As to any Distribution Date and
the
Class 1-A-12 Certificates, 4.5454545455% of
the Class Certificate Balance of the
Class 1-A-10 Certificates.
Class 1-A-15 Notional Amount: As to any Distribution Date and
the
Class 1-A-15 Certificates, the Class
Certificate Balance of the Class 1-A-14
Certificates.
Class 1-A-16 Accrual Distribution Amount: For any Distribution
Date
and the Class 1-A-16 Certificates prior to
the Accretion Termination Date, an
amount with respect to such Class equal to
the sum of (i) the amount allocated
but not currently distributable as interest
to such Class pursuant to Section
5.02(a)(ii) that is attributable to clause
(i) of the definition of "Interest
Distribution Amount," and (ii) the amount
allocated but not currently
distributable as interest to such Class
pursuant to Section 5.02(a)(ii) that is
attributable to clause (ii) of the
definition of "Interest Distribution Amount."
Class 1-A-16 Loss Allocation Amount: With respect to any
Distribution Date after the Senior Credit
Support Depletion Date for Group 1,
the lesser of (a) the Class Certificate
Balance of the Class 1-A-16 Certificates
with respect to such Distribution Date
prior to any reduction for the Class
1-A-16 Loss Allocation Amount and (b) the
Class 1-A-11 Loss Amount with respect
to such Distribution Date.
Class 2-A-1 Loss Amount: With respect to any Distribution Date
after
the Senior Credit Support Depletion Date
for Group 2, the amount, if any, by
which the Class Certificate Balance of the
Class 2-A-1 Certificates would be
reduced as a result of the allocation of
any reduction pursuant to Section
5.03(b) to such Class, without regard to
the operation of Section 5.03(e).
Class 2-A-2 Loss Allocation Amount: With respect to any
Distribution
Date after the Senior Credit Support
Depletion Date for Group 2, the lesser of
(a) the Class Certificate Balance of the
Class 2-A-2 Certificates with respect
to such Distribution Date prior to any
reduction for the Class 2-A-2 Loss
Allocation Amount and (b) the Class 2-A-1
Loss Amount with respect to such
Distribution Date.
Class 2-B Certificates: The Class 2-B-1, Class 2-B-2, Class
2-B-3,
Class 2-B-4, Class 2-B-5 and Class 2-B-6
Certificates.
Class 2-30-IO Notional Amount: As to any Distribution Date and
the
Class 2-30-IO Component, the product of (i)
the aggregate Stated Principal
Balance of the Group 2 Premium Mortgage
Loans on the Due Date in the month
preceding the month of such Distribution
Date and (ii) a fraction, (a) the
numerator of which is equal to the weighted
average of the Net Mortgage Interest
Rates of the Group 2 Premium Mortgage Loans
(based on the Stated Principal
Balances of the Group 2 Premium Mortgage
Loans as of the Due Date in the month
preceding the month of such Distribution
Date) minus 5.750% and (b) the
denominator of which is equal to
5.500%.
Class 5-IO Notional Amount: As to any Distribution Date and the
Class 5-IO Certificates, the product of (i)
the aggregate Stated Principal
Balance of the Group 5 Premium Mortgage
Loans on the Due Date in the month
preceding the month of such Distribution
Date and (ii) a fraction, (a) the
numerator of which is equal to the weighted
average of the Net Mortgage Interest
Rates of the Group 5 Premium Mortgage Loans
(based on the Stated Principal
Balances of the Group 5 Premium Mortgage
Loans as of the Due Date in the month
preceding the month of such Distribution
Date) minus 6.500% and (b) the
denominator of which is equal to
6.500%.
Class 15-IO Notional Amount: As to any Distribution Date and
the
Class 15-IO Certificates, the product of
(i) the aggregate Stated Principal
Balance of the Group 4 Premium Mortgage
Loans on the Due Date in the month
preceding the month of such Distribution
Date and (ii) a fraction, (a) the
numerator of which is equal to the weighted
average of the Net Mortgage Interest
Rates of the Group 4 Premium Mortgage Loans
(based on the Stated Principal
Balances of the Group 4 Premium Mortgage
Loans as of the Due Date in the month
preceding the month of such Distribution
Date) minus 5.000% and (b) the
denominator of which is equal to
5.000%.
Class 20-IO Notional Amount: As to any Distribution Date and
the
Class 20-IO Certificates, the product of
(i) the aggregate Stated Principal
Balance of the Group 3 Premium Mortgage
Loans on the Due Date in the month
preceding the month of such Distribution
Date and (ii) a fraction, (a) the
numerator of which is equal to the weighted
average of the Net Mortgage Interest
Rates of the Group 3 Premium Mortgage Loans
(based on the Stated Principal
Balances of the Group 3 Premium Mortgage
Loans as of the Due Date in the month
preceding the month of such Distribution
Date) minus 5.750% and (b) the
denominator of which is equal to
5.750%.
Class 5-B Certificates: The Class 5-B-1, Class 5-B-2, Class
5-B-3,
Class 5-B-4, Class 5-B-5 and Class 5-B-6
Certificates.
Class 30-IO Component: Either of the Class 1-30-IO Component or
the
Class 2-30-IO Component.
Class Certificate Balance: With respect to any Class (other than
the
Class 1-A-9, Class 1-A-12, Class 1-A-15,
Class X-PO, Class 30-IO, Class 20-IO,
Class 15-IO and Class 5-IO Certificates)
and any date of determination, and
subject to Section 5.03(f), the Initial
Class Certificate Balance of such Class
(plus, in the case of the Class 1-A-11 and
Class 1-A-16 Certificates, any Class
1-A-11 Accrual Distribution Amounts or
Class 1-A-16 Accrual Distribution
Amounts, as applicable, previously added
thereto) minus (A) the sum of (i) all
distributions of principal made with
respect thereto (including in the case of
any Class of Class X-B, Class 2-B or Class
5-B Certificates, any principal
otherwise payable to such Class of Class
X-B, Class 2-B or Class 5-B
Certificates used to pay any PO Deferred
Amounts), (ii) all reductions in Class
Certificate Balance previously allocated
thereto pursuant to Section 5.03(b) and
(iii) in the case of the Class 1-A-2, Class
1-A-16 and Class 2-A-2 Certificates,
any reduction allocated thereto pursuant to
Section 5.03(e) plus (B) the sum of
(x) all increases in Class Certificate
Balance previously allocated thereto
pursuant to Section 5.03(b) and (y) in the
case of the Class 1-A-2, Class 1-A-16
and Class 2-A-2 Certificates, any increases
allocated thereto pursuant to
Section 5.03(e). The Class 1-A-9, Class
1-A-12, Class 1-A-15, Class 30-IO, Class
15-IO, Class 20-IO and Class 5-IO
Certificates are Interest-Only Certificates
and have no Class Certificate Balance. The
Class Certificate Balance of the
Class X-PO Certificates as of any date of
determination shall equal the sum of
the Component Balances of the Class X-PO
Components.
Class Interest Shortfall: For any Distribution Date and each
interest-bearing Class (other than the
Class 30-IO Certificates), the amount by
which Accrued Certificate Interest for such
Class (as reduced pursuant to
Section 5.02(c)) exceeds the amount of
interest actually distributed on such
Class (or, in the case of the Class 1-A-11
and Class 1-A-16 Certificates prior
to the Accretion Termination Date, the
amount included in the Class 1-A-11
Accrual Distribution Amount or Class 1-A-16
Accrual Distribution Amount, as
applicable, pursuant to clause (i) of the
definition thereof, but not
distributed as interest on the Class 1-A-11
Certificates or Class 1-A-16
Certificates, as applicable) on such
Distribution Date pursuant to clause (i) of
the definition of "Interest Distribution
Amount." As to any Distribution Date
and the Class 30-IO Certificates, the sum
of the Component Interest Shortfalls
for the Class 30-IO Components.
Class IO Certificates: Any of the Class 30-IO, Class 20-IO,
Class
15-IO and Class 5-IO Certificates.
Class IO Component: Either of the Class 1-30-IO Component or
Class
2-30-IO Component.
Class Unpaid Interest Shortfall: As to any Distribution Date
and
each interest-bearing Class (other than the
Class 30-IO Certificates), the
amount by which the aggregate Class
Interest Shortfalls for such Class on prior
Distribution Dates exceeds the amount of
interest actually distributed on such
Class (or, in the case of the Class 1-A-11
and Class 1-A-16 Certificates prior
to the Accretion Termination Date, the
amount included in the Class 1-A-11
Accrual Distribution Amount or Class 1-A-16
Accrual Distribution Amount, as
applicable, pursuant to clause (ii) of the
definition thereof, but not
distributed as interest on the Class 1-A-11
Certificates or Class 1-A-16
Certificates, as applicable) on such prior
Distribution Dates pursuant to clause
(ii) of the definition of "Interest
Distribution Amount." As to any Distribution
Date and the Class 30-IO Certificates, the
sum of the Component Unpaid Interest
Shortfalls for the Class 30-IO
Components.
Class X-B Certificates: The Class X-B-1, Class X-B-2, Class
X-B-3,
Class X-B-4, Class X-B-5 and Class X-B-6
Certificates.
Class X-PO Component: Any of the Class 1-X-PO Component, Class
2-X-PO Component or Class 3-X-PO
Component.
Closing Date: December 29, 2004.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest: With respect to any Distribution Date and
the
Crossed Loan Groups, Loan Group 2 or Loan
Group 5, the least of (a) the
aggregate Servicing Fee for such
Distribution Date relating to the Crossed Loan
Groups in the aggregate, Loan Group 2 or
Loan Group 5 (before giving effect to
any reduction pursuant to Section 3.17),
(b) the Prepayment Interest Shortfall
for such Distribution Date and the Crossed
Loan Groups in the aggregate, Loan
Group 2 or Loan Group 5 and (c) one-twelfth
of 0.25% of the Pool Stated
Principal Balance of Crossed Loan Groups in
the aggregate, Loan Group 2 or Loan
Group 5, as the case may be. To the extent
that the aggregate Prepayment
Interest Shortfall for a Distribution Date
and the Crossed Loan Groups exceeds
the Compensating Interest for the Crossed
Loan Groups, such Compensating
Interest for such Distribution Date shall
be allocated between the Crossed Loan
Groups in proportion to the respective
Prepayment Interest Shortfalls relating
to such Crossed Loan Groups.
Component: As defined in the Preliminary Statement.
Component Balance: With respect to any PO Component and any date
of
determination, the Initial Component
Balance of such Component minus the sum of
(i) all distributions of principal made
with respect thereto and (ii) all
reductions in Component Balance previously
allocated thereto pursuant to Section
5.03(b). The Class IO Components are
interest-only Components and have no
Component Balance.
Component Interest Distribution Amount: For any Distribution
Date
and each Class IO Component, the sum of (i)
the Accrued Component Interest and
(ii) any Component Unpaid Interest
Shortfall for such Component. The PO
Components are principal only Components
and are not entitled to distributions
of interest.
Component Interest Shortfall: For any Distribution Date and
each
Class IO Component, the amount by which
Accrued Component Interest for such
Component exceeds the amount of interest
actually distributed on such Component
on such Distribution Date pursuant to
clause (i) of the definition of "Component
Interest Distribution Amount."
Component Notional Amount: As of any Distribution Date, either
of
the Class 1-30-IO Notional Amount or Class
2-30-IO Notional Amount.
Component Unpaid Interest Shortfall: As to any Distribution Date
and
each Class IO Component, the amount by
which the aggregate Component Interest
Shortfalls for such Component on prior
Distribution Dates exceeds the amount of
interest actually distributed on such
Component on such prior Distribution Dates
pursuant to clause (ii) of the definition
of "Component Interest Distribution
Amount."
Co-op Shares: Shares issued by private non-profit housing
corporations.
Corporate Trust Office: The principal corporate trust office of
the
Trustee at which at any particular time its
corporate trust business with
respect to this Agreement is conducted,
which office at the date of the
execution of this instrument is located at
9062 Old Annapolis Road, Columbia,
Maryland 21045-1951, Attention: Corporate
Trust Services - BOAMS 2004-11, and
for certificate transfer purposes is
located at Sixth Street and Marquette
Avenue, Minneapolis, Minnesota 55479,
Attention: Corporate Trust Services -
BOAMS 2004-11, or at such other address as
the Trustee may designate from time
to time by notice to the
Certificateholders, the Depositor and the Servicer.
Corresponding Upper-Tier Class, Classes or Component: As to the
following Uncertificated Middle-Tier
Interests, the Corresponding Upper-Tier
Class, Classes or Component, as
follows:
Corresponding Upper-Tier Class,
Uncertificated Middle-Tier Interest
Classes or
Component
-----------------------------------
---------------------------------------
Class 1-A-M1 Interest
Class 1-A-1, 1-A-2, Class 1-A-3, Class
1-A-5, Class 1-A-6, Class 1-A-7 and
Class 1-A-8, 1-A-11 and Class 1-A-16
Certificates
Class 1-A-M4 Interest
Class 1-A-4 and Class 1-A-9
Certificates
Class 1-A-M10 Interest
Class 1-A-10 and Class 1-A-12
Certificates
Class 1-A-M13 Interest
Class 1-A-13 Certificates
Class 1-A-M14 Interest
Class 1-A-14 and Class 1-A-15
Certificates
Class 1-A-MUR Interest
Class 1-A-R Certificate
Class 2-A-M1 Interest
Class 2-A-1 and Class 2-A-2
Certificates
Class 3-A-M1 Interest
Class 3-A-1 Certificates
Class 4-A-M1 Interest
Class 4-A-1 Certificates
Class 5-A-M1 Interest
Class 5-A-1 Certificates
Class 1-X-MPO Interest
Class 1-X-PO Component
Class 2-X-MPO Interest
Class 2-X-PO Component
Class 3-X-MPO Interest
Class 3-X-PO Component
Class 15-MPO Interest
Class 15-PO Certificates
Class 5-MPO Interest
Class 5-PO Certificates
Class 1-30-MIO Interest
Class 1-30-IO Component
Class 2-30-MIO Interest
Class 2-30-IO Component
Class 20-MIO Interest
Class 20-IO Certificates
Class 15-MIO Interest
Class 15-IO Certificates
Class 5-MIO Interest
Class 5-IO Certificates
Class X-B-M1 Interest
Class X-B-1 Certificates
Class X-B-M2 Interest
Class X-B-2 Certificates
Class X-B-M3 Interest
Class X-B-3 Certificates
Class X-B-M4 Interest
Class X-B-4 Certificates
Class X-B-M5 Interest
Class X-B-5 Certificates
Class X-B-M6 Interest
Class X-B-6 Certificates
Class 2-B-M1 Interest
Class 2-B-1 Certificates
Class 2-B-M2 Interest
Class 2-B-2 Certificates
Class 2-B-M3 Interest
Class 2-B-3 Certificates
Class 2-B-M4 Interest
Class 2-B-4 Certificates
Class 2-B-M5 Interest
Class 2-B-5 Certificates
Class 2-B-M6 Interest
Class 2-B-6 Certificates
Class 5-B-M1 Interest
Class 5-B-1 Certificates
Class 5-B-M2 Interest
Class 5-B-2 Certificates
Class 5-B-M3 Interest
Class 5-B-3 Certificates
Class 5-B-M4 Interest
Class 5-B-4 Certificates
Class 5-B-M5 Interest
Class 5-B-5 Certificates
Class 5-B-M6 Interest
Class 5-B-6 Certificates
Crossed Aggregate Subordinate Percentage: As to any
Distribution
Date, the aggregate Class Certificate
Balance of the Class X-B Certificates
divided by the aggregate Pool Stated
Principal Balance (Non-PO Portion) for the
Crossed Loan Groups.
Crossed Group: Any of Group 1, Group 3 or Group 4.
Crossed Loan Group: Any of Loan Group 1, Loan Group 3 or Loan
Group
4.
Crossed Group Total Senior Percentage: With respect to any
Distribution Date, the percentage, carried
six places rounded up, obtained by
dividing the aggregate Class Certificate
Balance of the Senior Certificates of
the Crossed Groups (but not the PO
Components of the Crossed Groups and the
Class 15-PO Certificates) immediately prior
to such Distribution Date by the
aggregate Pool Stated Principal Balance
(Non-PO Portion) of the Crossed Loan
Groups with respect to such Distribution
Date.
Custodian: Initially, the Trustee, and thereafter the Custodian,
if
any, hereafter appointed by the Trustee
pursuant to Section 9.12. The Custodian
may (but need not) be the Trustee or any
Person directly or indirectly
controlling or controlled by or under
common control of either of them. Neither
the Servicer nor the Depositor, nor any
Person directly or indirectly
controlling or controlled by or under
common control with any such Person may be
appointed Custodian.
Customary Servicing Procedures: With respect to the Servicer,
procedures (including collection
procedures) that the Servicer customarily
employs and exercises in servicing and
administering mortgage loans for its own
account and which are in accordance with
accepted mortgage servicing practices
of prudent lending institutions servicing
mortgage loans of the same type as the
Mortgage Loans in the jurisdictions in
which the related Mortgaged Properties
are located.
Cut-off Date: December 1, 2004.
Cut-off Date Pool Principal Balance: For each Loan Group the
aggregate of the Cut-off Date Principal
Balances of the Mortgage Loans in such
Loan Group which is $355,347,444.53 for
Loan Group 1, $128,382,537.41 for Loan
Group 2, $17,313,688.77 for Loan Group 3,
$57,311,400.27 for Loan Group 4 and
$81,845,733.67 for Loan Group 5.
Cut-off Date Principal Balance: As to any Mortgage Loan, the
unpaid
principal balance thereof as of the close
of business on the Cut-off Date,
reduced by all installments of principal
due on or prior thereto whether or not
paid.
Debt Service Reduction: As to any Mortgage Loan and any
Determination Date, the excess of (i) the
Monthly Payment due on the related Due
Date under the terms of such Mortgage Loan
over (ii) the amount of the monthly
payment of principal and/or interest
required to be paid with respect to such
Due Date by the Mortgagor as established by
a court of competent jurisdiction
(pursuant to an order which has become
final and nonappealable) as a result of a
proceeding initiated by or against the
related Mortgagor under the Bankruptcy
Code, as amended from time to time (11
U.S.C.); provided that no such excess
shall be considered a Debt Service
Reduction so long as (a) the Servicer is
pursuing an appeal of the court order
giving rise to any such modification and
(b)(1) such Mortgage Loan is not in default
with respect to payment due
thereunder in accordance with the terms of
such Mortgage Loan as in effect on
the Cut-off Date or (2) Monthly Payments
are being advanced by the Servicer in
accordance with the terms of such Mortgage
Loan as in effect on the Cut-off
Date.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that
became
the subject of a Debt Service
Reduction.
Defective Mortgage Loan: Any Mortgage Loan which is required to
be
cured, repurchased or substituted for
pursuant to Section 2.02 or 2.04.
Deficient Valuation: As to any Mortgage Loan and any
Determination
Date, the excess of (i) the then
outstanding indebtedness under such Mortgage
Loan over (ii) the secured valuation
thereof established by a court of competent
jurisdiction (pursuant to an order which
has become final and nonappealable) as
a result of a proceeding initiated by or
against the related Mortgagor under the
Bankruptcy Code, as amended from time to
time (11 U.S.C.), pursuant to which
such Mortgagor retained such Mortgaged
Property; provided that no such excess
shall be considered a Deficient Valuation
so long as (a) the Servicer is
pursuing an appeal of the court order
giving rise to any such modification and
(b)(1) such Mortgage Loan is not in default
with respect to payments due
thereunder in accordance with the terms of
such Mortgage Loan as in effect on
the Cut-off Date or (2) Monthly Payments
are being advanced by the Servicer in
accordance with the terms of such Mortgage
Loan as in effect on the Cut-off
Date.
Deficient Valuation Mortgage Loan: Any Mortgage Loan that became
the
subject of a Deficient Valuation.
Definitive Certificates: As defined in Section 6.02(c)(iii).
Depositor: Banc of America Mortgage Securities, Inc., a
Delaware
corporation, or its successor in interest,
as depositor of the Trust Estate.
Depository: The Depository Trust Company, the nominee of which
is
Cede & Co., as the registered Holder of
the Book-Entry Certificates or any
successor thereto appointed in accordance
with this Agreement. The Depository
shall at all times be a "clearing
corporation" as defined in Section 8-102(3) of
the Uniform Commercial Code of the State of
New York.
Depository Participant: A broker, dealer, bank or other
financial
institution or other Person for whom from
time to time a Depository effects
book-entry transfers and pledges of
securities deposited with the Depository.
Determination Date: As to any Distribution Date, the 16th day of
the
month of the related Distribution Date or,
if such 16th day is not a Business
Day, the Business Day immediately preceding
such 16th day.
Discount Mortgage Loan: Any Group 1 Discount Mortgage Loan, Group
2
Discount Mortgage Loan, Group 3 Discount
Mortgage Loan, Group 4 Discount
Mortgage Loan or Group 5 Discount Mortgage
Loan.
Distribution Date: The 25th day of each month beginning in
January
2005 (or, if such day is not a Business
Day, the next Business Day).
Due Date: As to any Distribution Date and each Mortgage Loan,
the
first day in the calendar month of such
Distribution Date.
Eligible Account: Any of (i) an account or accounts maintained
with
(a) Bank of America, or (b) a federal or
state chartered depository institution
or trust company the short-term unsecured
debt obligations of which (or, in the
case of a depository institution or trust
company that is the principal
subsidiary of a holding company, the debt
obligations of such holding company)
have the highest short-term ratings of each
Rating Agency at the time any
amounts are held on deposit therein, or
(ii) an account or accounts in a
depository institution or trust company in
which such accounts are insured by
the FDIC (to the limits established by the
FDIC) and the uninsured deposits in
which accounts are otherwise secured such
that, as evidenced by an Opinion of
Counsel delivered to the Trustee and to
each Rating Agency, the
Certificateholders have a claim with
respect to the funds in such account or a
perfected first priority security interest
against any collateral (which shall
be limited to Permitted Investments)
securing such funds that is superior to
claims of any other depositors or creditors
of the depository institution or
trust company in which such account is
maintained, or (iii) a trust account or
accounts maintained with the trust
department of a federal or state chartered
depository institution or trust company,
acting in its fiduciary capacity or
(iv) any other account acceptable to each
Rating Agency. Eligible Accounts may
bear interest and may include, if otherwise
qualified under this definition,
accounts maintained with the Trustee or
Bank of America.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificates: Any Class X-B-4, Class X-B-5,
Class
X-B-6, Class 2-B-4, Class 2-B-5, Class
2-B-6, Class 5-B-4, Class 5-B-5 or Class
5-B-6 Certificate.
Escrow Account: As defined in Section 3.09.
Escrow Payments: The amounts constituting taxes, assessments,
Primary Insurance Policy premiums, fire and
hazard insurance premiums and other
payments as may be required to be escrowed
by the Mortgagor with the mortgagee
pursuant to the terms of any Mortgage Note
or Mortgage.
Events of Default: As defined in Section 8.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan,
the
amount, if any, by which the sum of any
Liquidation Proceeds of such Mortgage
Loan received in the calendar month in
which such Mortgage Loan became a
Liquidated Mortgage Loan, net of any
amounts previously reimbursed to the
Servicer as Nonrecoverable Advance(s) with
respect to such Mortgage Loan
pursuant to Section 3.11(a)(iii), exceeds
(i) the unpaid principal balance of
such Liquidated Mortgage Loan as of the Due
Date in the month in which such
Mortgage Loan became a Liquidated Mortgage
Loan plus (ii) accrued interest at
the Mortgage Interest Rate from the Due
Date as to which interest was last paid
or for which a Periodic Advance was made
(and not reimbursed) up to the Due Date
applicable to the Distribution Date
immediately following the calendar month
during which such liquidation occurred.
FDIC: The Federal Deposit Insurance Corporation, or any
successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any
successor
thereto.
Final Distribution Date: The Distribution Date on which the
final
distribution in respect of the Certificates
will be made pursuant to Section
10.01.
Financial Market Service: Bloomberg Financial Service and any
other
financial information provider designated
by the Depositor by written notice to
the Trustee.
FIRREA: The Financial Institutions Reform, Recovery and
Enforcement
Act of 1989, as amended.
Fitch: Fitch Ratings, or any successor thereto.
FNMA: Fannie Mae, or any successor thereto.
Form 10-K: As defined in Section 3.22(a).
Fractional Interest: As defined in Section 5.02(d).
Group: Any of Group 1, Group 2, Group 3, Group 4 or Group 5.
Group 1: The Group 1 Senior Certificates, the Class 1-X-PO
Component
and the Class 1-30-IO Component.
Group 1 Discount Mortgage Loan: A Group 1 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off
Date that is less than 5.500% per
annum.
Group 1 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-1
hereto.
Group 1 Premium Mortgage Loan: A Group 1 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off
Date that is equal to or greater than
5.500% per annum.
Group 1 Senior Certificates: Class 1-A-1, Class 1-A-2, Class
1-A-3,
Class 1-A-4, Class 1-A-5, Class 1-A-6,
Class 1-A-7, Class 1-A-8, Class 1-A-9,
Class 1-A-10, Class 1-A-11, Class 1-A-12,
Class 1-A-13, Class 1-A-14, Class
1-A-15, Class 1-A-16, Class 1-A-R, Class
1-A-MR and Class 1-A-LR Certificates.
Group 2: The Group 2 Senior Certificates, the Class 2-X-PO
Component
and the Class 2-30-IO Component.
Group 2 Discount Mortgage Loan: A Group 2 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off
Date that is less than 5.750% per
annum.
Group 2 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-2
hereto.
Group 2 Premium Mortgage Loan: A Group 2 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off
Date that is equal to or greater than
5.750% per annum.
Group 2 Senior Certificates: Class 2-A-1 and Class 2-A-2
Certificates.
Group 3: The Group 3 Senior Certificates and the Class 3-X-PO
Component.
Group 3 Discount Mortgage Loan: A Group 3 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off
Date that is less than 5.750% per
annum.
Group 3 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-3
hereto.
Group 3 Premium Mortgage Loan: A Group 3 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off
Date that is equal to or greater than
5.750% per annum.
Group 3 Senior Certificates: Class 3-A-1 and Class 20-IO
Certificates.
Group 4: The Group 4 Senior Certificates.
Group 4 Discount Mortgage Loan: A Group 4 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off
Date that is less than 5.000% per
annum.
Group 4 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-4
hereto.
Group 4 Premium Mortgage Loan: A Group 4 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off
Date that is equal to or greater than
5.000% per annum.
Group 4 Senior Certificates: Class 4-A-1, Class 15-IO and Class
15-PO Certificates.
Group 5: The Group 5 Senior Certificates.
Group 5 Discount Mortgage Loan: A Group 5 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off
Date that is less than 6.500% per
annum.
Group 5 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-5
hereto.
Group 5 Premium Mortgage Loan: A Group 5 Mortgage Loan with a
Net
Mortgage Interest Rate as of the Cut-off
Date that is equal to or greater than
6.500% per annum.
Group 5 Senior Certificates: Class 5-A-1, Class 5-IO and Class
5-PO
Certificates.
Group Subordinate Amount: With respect to any Distribution Date
and
any Loan Group, the excess of the Pool
Stated Principal Balance (Non-PO Portion)
for such Loan Group over the aggregate
Class Certificate Balance of the Senior
Certificates (but not the Class 15-PO and
Class 5-PO Certificates) of the
Related Group immediately prior to such
date.
Holder: A Certificateholder.
Independent: When used with respect to any specified Person
means
such a Person who (i) is in fact
independent of the Depositor and the Servicer,
(ii) does not have any direct financial
interest or any material indirect
financial interest in the Depositor or the
Servicer or in an affiliate of either
of them, and (iii) is not connected with
the Depositor or the Servicer as an
officer, employee, promoter, underwriter,
trustee, partner, director or person
performing similar functions.
Indirect Depository Participant: A broker, dealer, bank or
other
financial institution or other Person
maintaining a custodial relationship with
a Depository Participant.
Initial Class Certificate Balance: As to each Class of
Certificates
(other than the Class 1-A-9, Class 1-A-12,
Class 1-A-15, Class 5-IO, Class
20-IO, Class 15-IO, Class 30-IO and Class
X-PO Certificates), the Class
Certificate Balance set forth in the
Preliminary Statement. The Class 1-A-9,
Class 1-A-12, Class 1-A-15, Class 30-IO,
Class 20-IO, Class 15-IO and Class 5-IO
Certificates are Interest-Only Certificates
and have no Initial Class
Certificate Balance. The Initial Class
Certificate Balance of the Class X-PO
Certificates is the sum of the Initial
Component Balances for the Class 1-X-PO,
Class 2-X-PO and Class 3-X-PO
Components.
Initial Component Balance: As to each PO Component, the
Component
Balance set forth in the Preliminary
Statement. The Class IO Components are
interest-only Components and have no
Initial Component Balance.
Initial Component Notional Amount: As to each Class IO
Component,
the Component Notional Amount set forth in
the Preliminary Statement.
Initial Notional Amount: As to each Class of Interest-Only
Certificates (other than the Class 30-IO
Certificates), the Notional Amount set
forth in the Preliminary Statement. As to
the Class 30-IO Certificates, the sum
of the Initial Component Notional Amounts
for the Class 1-30-IO and Class
2-30-IO Components.
Insurance Policy: With respect to any Mortgage Loan included in
the
Trust Estate, any related insurance policy,
including all riders and
endorsements thereto in effect, including
any replacement policy or policies for
any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than
any amount included in such Insurance
Proceeds in respect of Insured
Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or
any
other insurance policy with respect to the
Mortgage Loans.
Interest Accrual Period: As to any Distribution Date and each
Class
of Certificates (other than the Class
1-A-14, Class 1-A-15, Class X-PO, Class
5-PO, Class 15-PO and Class 30-IO
Certificates) and each Class IO Component, the
period from and including the first day of
the calendar month preceding the
calendar month of such Distribution Date to
but not including the first day of
the calendar month of such Distribution
Date. As to any Distribution Date and
the Class 1-A-14 and Class 1-A-15
Certificates, the period from and including
the 25th day of the calendar month
preceding the calendar month in which such
Distribution Date occurs and ending on the
24th day of the calendar month in
which such Distribution Date occurs.
Interest Distribution Amount: For any Distribution Date and
each
interest- bearing Class (other than the
Class 30-IO Certificates), the sum of
(i) the Accrued Certificate Interest,
subject to reduction pursuant to Section
5.02(c) and (ii) any Class Unpaid Interest
Shortfall for such Class. For any
Distribution Date and the Class 30-IO
Certificates, the sum of the Component
Interest Distribution Amounts for the Class
30-IO Components.
Interest-Only Certificates: Any Class of Certificates entitled
to
distributions of interest, but no
distributions of principal. The Class 1-A-9,
Class 1-A-12, Class 1-A-15, Class 30-IO,
Class 20-IO, Class 15-IO and Class 5-IO
Certificates are the only Classes of
Interest-Only Certificates.
Interest Settlement Rate: As defined in Section 5.09.
LIBOR: As to any Distribution Date, the arithmetic mean of the
London Interbank offered rate quotations
for one-month U.S. Dollar deposits, as
determined by the Trustee in accordance
with Section 5.09.
LIBOR Business Day: Any Business Day on which banks are open
for
dealing in foreign currency and exchange in
London, England or the City of New
York.
LIBOR Certificates: Both of the Class 1-A-14 and Class 1-A-15
Certificates.
Liquidated Mortgage Loan: With respect to any Distribution Date,
a
defaulted Mortgage Loan (including any REO
Property) that was liquidated in the
calendar month preceding the month of such
Distribution Date and as to which the
Servicer has certified (in accordance with
this Agreement) that it has received
all proceeds it expects to receive in
connection with the liquidation of such
Mortgage Loan including the final
disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or
complete liquidation of defaulted
Mortgage Loans, whether through trustee's
sale, foreclosure sale or otherwise or
amounts received in connection with any
condemnation or partial release of a
Mortgaged Property and any other proceeds
received in connection with an REO
Property, less the sum of related
unreimbursed Servicing Fees and Advances.
Loan Group: Any of Loan Group 1, Loan Group 2, Loan Group 3,
Loan
Group 4 or Loan Group 5.
Loan Group 1: The Group 1 Mortgage Loans.
Loan Group 2: The Group 2 Mortgage Loans.
Loan Group 2 Senior Percentage: With respect to any
Distribution
Date, the percentage, carried six places
rounded up, obtained by dividing the
aggregate Class Certificate Balance of the
Group 2 Senior Certificates (but not
the Class 2-X-PO Component) immediately
prior to such Distribution Date by the
aggregate Pool Stated Principal Balance
(Non-PO Portion) of the Loan Group 2
with respect to such Distribution Date.
Loan Group 3: The Group 3 Mortgage Loans.
Loan Group 4: The Group 4 Mortgage Loans.
Loan Group 5: The Group 5 Mortgage Loans.
Loan Group 5 Senior Percentage: With respect to any
Distribution
Date, the percentage, carried six places
rounded up, obtained by dividing the
aggregate Class Certificate Balance of the
Group 5 Senior Certificates (but not
the Class 5-PO Certificates) immediately
prior to such Distribution Date by the
aggregate Pool Stated Principal Balance
(Non-PO Portion) of Loan Group 5 with
respect to such Distribution Date.
Loan-to-Value Ratio: With respect to any Mortgage Loan and any
date
of determination, the fraction, expressed
as a percentage, the numerator of
which is the outstanding principal balance
of the related Mortgage Loan at the
date of determination and the denominator
of which is the Appraised Value of the
related Mortgaged Property.
Lower-Tier Distribution Amount: As defined in Section 5.02(a).
Lower-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Mortgage
Loans, such amounts as shall from time
to time be held in the Certificate Account
(other than amounts held in respect
of the Middle-Tier Certificate Sub-Account
or the Upper-Tier Certificate
Sub-Account), the insurance policies, if
any, relating to a Mortgage Loan and
property which secured a Mortgage Loan and
which has been acquired by
foreclosure or deed in lieu of
foreclosure.
MERS: As defined in Section 2.01(b)(iii).
Middle-Tier Certificate Sub-Account: The sub-account of the
Certificate Account designated by the
Trustee pursuant to Section 3.08(f).
Middle-Tier Distribution Amount: As defined in Section 5.02(a).
Middle-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the
Uncertificated Lower-Tier Interests and such
amounts as shall from time to time be
deemed held in the Middle-Tier Certificate
Sub-Account.
Monthly Covered Amount: As defined in the Mortgage Loan
Purchase
Agreement.
Monthly Form 8-K: As defined in Section 3.22(a).
Monthly Payment: The scheduled monthly payment on a Mortgage
Loan
due on any Due Date allocable to principal
and/or interest on such Mortgage Loan
which, unless otherwise specified herein,
shall give effect to any related Debt
Service Reduction and any Deficient
Valuation that affects the amount of the
monthly payment due on such Mortgage Loan
or the Monthly Covered Amount
representing such Scheduled Monthly
Payment.
Mortgage: The mortgage, deed of trust or other instrument creating
a
first lien on a Mortgaged Property securing
a Mortgage Note or creating a first
lien on a leasehold interest.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage
Loan.
Mortgage Interest Rate: As to any Mortgage Loan, the per annum
rate
of interest at which interest accrues on
the principal balance of such Mortgage
Loan in accordance with the terms of the
related Mortgage Note.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated December 29, 2004, between
Bank of America, as seller, and the
Depositor, as purchaser.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time
to
time amended by the Servicer to reflect the
addition of Substitute Mortgage
Loans and the deletion of Defective
Mortgage Loans pursuant to the provisions of
this Agreement) transferred to the Trustee
as part of the Trust Estate and from
time to time subject to this Agreement,
attached hereto as Exhibit D-1, Exhibit
D-2, Exhibit D-3, Exhibit D-4 and Exhibit
D-5, setting forth the following
information with respect to each Mortgage
Loan: (i) the Mortgage Loan
identifying number; (ii) a code indicating
whether the Mortgaged Property is
owner-occupied; (iii) the property type for
each Mortgaged Property; (iv) the
original months to maturity or the
remaining months to maturity from the Cut-off
Date; (v) the Loan-to-Value Ratio at
origination; (vi) the Mortgage Interest
Rate as of the Cut-off Date; (vii) the date
on which the first Monthly Payment
was due on the Mortgage Loan, and, if such
date is not the Due Date currently in
effect, such Due Date; (viii) the stated
maturity date; (ix) the amount of the
Monthly Payment as of the Cut-off Date; (x)
the paid-through date; (xi) the
original principal amount of the Mortgage
Loan; (xii) the principal balance of
the Mortgage Loan as of the close of
business on the Cut-off Date, after
application of payments of principal due on
or before the Cut-off Date, whether
or not collected, and after deduction of
any payments collected of scheduled
principal due after the Cut-off Date;
(xiii) a code indicating the purpose of
the Mortgage Loan; (xiv) a code indicating
the documentation style; (xv) the
Appraised Value; and (xvi) the closing date
of such Mortgage Loan. With respect
to the Mortgage Loans in the aggregate, the
Mortgage Loan Schedule shall set
forth the following information, as of the
Cut-off Date: (i) the number of
Mortgage Loans; (ii) the current aggregate
outstanding principal balance of the
Mortgage Loans; (iii) the weighted average
Mortgage Interest Rate of the
Mortgage Loans; and (iv) the weighted
average months to maturity of the Mortgage
Loans.
Mortgage Loans: Such of the mortgage loans transferred and
assigned
to the Trustee pursuant to Section 2.01 as
from time to time are held as a part
of the Trust Estate (including any
Substitute Mortgage Loans and REO Property),
the Mortgage Loans originally so held being
identified in the Mortgage Loan
Schedule.
Mortgage Note: The originally executed note or other evidence
of
indebtedness evidencing the indebtedness of
a Mortgagor under a Mortgage Loan,
together with all riders thereto and
amendments thereof.
Mortgaged Property: The underlying property securing a Mortgage
Loan, which may include Co-op Shares or
residential long-term leases.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Interest Rate: As to any Mortgage Loan and
Distribution
Date, such Mortgage Loan's Mortgage
Interest Rate thereon on the first day of
the month preceding the month of the
related Distribution Date reduced by (i)
the Servicing Fee Rate and (ii) the Trustee
Fee Rate.
Non-PO Percentage: As to any Discount Mortgage Loan, a fraction
(expressed as a percentage), the numerator
of which is the Net Mortgage Interest
Rate as of the Cut-off Date of such
Discount Mortgage Loan and the denominator
of which is 5.500% for each Group 1
Discount Mortgage Loan, 5.750% for each
Group 2 Discount Mortgage Loan and Group 3
Discount Mortgage Loan, 5.000% for
each Group 4 Discount Mortgage Loan and
6.500% for each Group 5 Discount
Mortgage Loan. As to any Mortgage Loan that
is not a Discount Mortgage Loan,
100%.
Non-PO Principal Amount: As to any Distribution Date and Loan
Group,
the sum of (i) the sum of the applicable
Non-PO Percentage of (a) the principal
portion of each Monthly Payment due on each
Mortgage Loan in such Loan Group on
the related Due Date, (b) the Stated
Principal Balance, as of the date of
repurchase, of each Mortgage Loan in such
Loan Group that was repurchased by the
Depositor pursuant to this Agreement as of
such Distribution Date, (c) any
Substitution Adjustment Amount in
connection with a Defective Mortgage Loan in
such Loan Group received with respect to
such Distribution Date, (d) any
Liquidation Proceeds allocable to
recoveries of principal of Mortgage Loans in
such Loan Group that are not yet Liquidated
Mortgage Loans received during the
calendar month preceding the month of such
Distribution Date, (e) with respect
to each Mortgage Loan in such Loan Group
that became a Liquidated Mortgage Loan
during the calendar month preceding the
month of such Distribution Date, the
amount of Liquidation Proceeds (excluding
Excess Proceeds) allocable to
principal received with respect to such
Mortgage Loan during the calendar month
preceding the month of such Distribution
Date and (f) all Principal Prepayments
on the Mortgage Loans in such Loan Group
received during the calendar month
preceding the month of such Distribution
Date; and (ii) the Non-PO Recovery for
such Distribution Date.
Non-PO Recovery: As to any Distribution Date and Loan Group,
the
amount of all Recoveries received with
respect to such Loan Group during the
calendar month preceding the month of such
Distribution Date less the PO
Recovery with respect to such Loan Group
for such Distribution Date.
Non-Supported Interest Shortfalls: As to any Distribution Date
and
(i) the Crossed Loan Groups, the amount, if
any, by which the aggregate of
Prepayment Interest Shortfalls for the
Crossed Loan Groups exceeds Compensating
Interest for such Crossed Loan Groups for
such Distribution Date, (ii) Loan
Group 2, the amount, if any, by which the
aggregate of Prepayment Interest
Shortfalls for Loan Group 2 exceeds
Compensating Interest for Loan Group 2 for
such Distribution Date and (iii) Loan Group
5, the amount, if any, by which the
aggregate of Prepayment Interest Shortfalls
for Loan Group 5 exceeds
Compensating Interest for Loan Group 5 for
such Distribution Date
Non-U.S. Person: A Person other than a U.S. Person.
Nonrecoverable Advance: Any portion of an Advance previously made
or
proposed to be made in respect of a
Mortgage Loan which has not been previously
reimbursed and which, in the good faith
judgment of the Servicer, will not or,
in the case of a proposed Advance, would
not be ultimately recoverable from the
related Mortgagor, related Liquidation
Proceeds, or other recoveries in respect
of the related Mortgage Loan.
Notional Amount: With respect to: (i) the Class 1-A-9
Certificates
and any date of determination, the Class
1-A-9 Notional Amount, (ii) the Class
1-A-12 Certificates and any date of
determination, the Class 1-A-12 Notional
Amount, (iii) the Class 1-A-15 Certificates
and any date of determination, the
Class 1-A-15 Notional Amount, (iv) the
Class 30-IO Certificates and any date of
determination, the Class 30-IO Notional
Amount, (v) the Class 20-IO Certificates
and any date of determination, the Class
20-IO Notional Amount, (vi) the Class
15-IO Certificates and any date of
determination, the Class 15-IO Notional
Amount, (vii) the Class 5-IO Certificates
and any date of determination, the
Class 5-IO Notional Amount, (viii) the
Class 1-30-IO Component and any date of
determination, the Class 1-30-IO Notional
Amount and (ix) the Class 2-30-IO
Component and any date of determination,
the Class 2-30-IO Notional Amount.
Offered Certificates: The Senior Certificates, Class X-B-1,
Class
X-B-2, Class X-B-3, Class 2-B-1, Class
2-B-2, Class 2-B-3, Class 5-B-1, Class
5-B-2 and Class 5-B-3 Certificates.
Officer's Certificate: A certificate signed by the Chairman of
the
Board, Vice Chairman of the Board,
President or a Vice President and by the
Treasurer, the Secretary or one of the
Assistant Treasurers or Assistant
Secretaries, or any other duly authorized
officer of the Depositor or the
Servicer, as the case may be, and delivered
to the Trustee.
Opinion of Counsel: A written opinion of counsel acceptable to
the
Trustee, who may be counsel for the
Depositor or the Servicer, except that any
opinion of counsel relating to the
qualification of the Trust Estate as three
separate REMICs or compliance with the
REMIC Provisions must be an opinion of
Independent counsel.
Original Fractional Interest: With respect to each of the
following
Classes of Subordinate Certificates, the
corresponding percentage described
below, as of the Closing Date:
Class X-B-1
1.20%
Class X-B-2
0.75%
Class X-B-3
0.45%
Class X-B-4
0.30%
Class X-B-5
0.15%
Class X-B-6
0.00%
Class 2-B-1
1.53%
Class 2-B-2
0.97%
Class 2-B-3
0.61%
Class 2-B-4
0.36%
Class 2-B-5
0.15%
Class 2-B-6
0.00%
Class 5-B-1
1.12%
Class
5-B-2
0.71%
Class 5-B-3
0.46%
Class 5-B-4
0.31%
Class 5-B-5
0.10%
Class 5-B-6
0.00%
Original Subordinate Certificate Balance: $12,470,967.00 for
the
Class X-B Certificates, $3,723,707.00 for
the Class 2-B Certificates and
$2,291,730.00 for Class 5-B
Certificates.
OTS: The Office of Thrift Supervision.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan
which
was not the subject of a Principal
Prepayment in Full prior to such Due Date,
which did not become a Liquidated Mortgage
Loan prior to such Due Date and which
was not purchased from the Trust prior to
such Due Date pursuant to Section 2.02
or 2.04.
Ownership Interest: As to any Certificate, any ownership or
security
interest in such Certificate, including any
interest in such Certificate as the
Holder thereof and any other interest
therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: As to each Class of interest-bearing
Certificates
(other than the Class 30-IO Certificates)
and each Class 30-IO Component, the
per annum rate set forth or described in
the Preliminary Statement.
Paying Agent: As defined in Section 9.13.
Percentage Interest: As to any Certificate, the percentage
obtained
by dividing the initial Certificate Balance
of such Certificate (or the initial
notional amount for Class 1-A-9, Class
1-A-12, Class 1-A-15, Class 30-IO, Class
20-IO, Class 15-IO and Class 5-IO
Certificates) by the Initial Class Certificate
Balance or Initial Notional Amount, as
applicable, of the Class of which such
Certificate is a part.
Periodic Advance: The payment required to be made by the
Servicer
with respect to any Distribution Date
pursuant to Section 3.20, the amount of
any such payment being equal to the
aggregate of Monthly Payments (net of the
Servicing Fee) on the Mortgage Loans
(including any REO Property) that were due
on the related Due Date and not received as
of the close of business on the
related Determination Date, less the
aggregate amount of any such delinquent
payments that the Servicer has determined
would constitute a Nonrecoverable
Advance if advanced.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by
the
United
States, FHLMC, FNMA or any agency or instrumentality of the
United
States
when such obligations are backed by the full faith and credit
of
the United
States; provided that such obligations of FHLMC or FNMA shall
be limited
to senior debt obligations and mortgage participation
certificates other than investments in mortgage-backed or
mortgage
participation securities with yields evidencing extreme sensitivity
to the
rate of
principal payments on the underlying mortgages, which shall not
constitute
Permitted Investments hereunder;
(ii) repurchase agreements on obligations specified in clause
(i)
maturing
not more than one month from the date of acquisition thereof
with
a
corporation incorporated under the laws of the United States or
any
state
thereof rated not lower than "A-1" by S&P and "F-1" by
Fitch;
(iii) federal funds, certificates of deposit, demand deposits,
time
deposits
and bankers' acceptances (which shall each have an original
maturity
of not more than 90 days and, in the case of bankers'
acceptances, shall in no event have an original maturity of more
than 365
days or a
remaining maturity of more than 30 days) denominated in United
States
dollars of any U.S. depository institution or trust company
incorporated under the laws of the United States or any state
thereof,
rated not
lower than "A-1" by S&P and "F-1" by Fitch;
(iv) commercial paper (having original maturities of not more
than
365 days)
of any corporation incorporated under the laws of the United
States or
any state thereof which is rated not lower than "A-1" by S&P
and
"F-1" by
Fitch;
(v) investments in money market funds (including funds of the
Trustee or
its affiliates, or funds for which an affiliate of the Trustee
acts as
advisor, as well as funds for which the Trustee and its
affiliates
may
receive compensation) rated either "AAAm" or "AAAm G" by S&P
and "AAA"
by Fitch (if
rated by Fitch) or otherwise approved in writing by each
Rating
Agency; and
(vi) other obligations or securities that are acceptable to
each
Rating
Agency and, as evidenced by an Opinion of Counsel obtained by
the
Servicer,
will not affect the qualification of the Trust Estate as three
separate
REMICs;
provided, however, that no instrument shall
be a Permitted Investment if it
represents either (a) the right to receive
only interest payments with respect
to the underlying debt instrument or (b)
the right to receive both principal and
interest payments derived from obligations
underlying such instrument and the
principal and interest with respect to such
instrument provide a yield to
maturity greater than 120% of the yield to
maturity at par of such underlying
obligations.
Permitted Transferee: Any Person other than (i) the United
States,
or any State or any political subdivision
thereof, or any agency or
instrumentality of any of the foregoing,
(ii) a foreign government,
international organization or any agency or
instrumentality of either of the
foregoing, (iii) an organization which is
exempt from tax imposed by Chapter 1
of the Code (including the tax imposed by
Section 511 of the Code on unrelated
business taxable income) (except certain
farmers' cooperatives described in Code
Section 521), (iv) rural electric and
telephone cooperatives described in Code
Section 1381(a)(2)(C), (v) a Person with
respect to whom the income on a
Residual Certificate is allocable to a
foreign permanent establishment or fixed
base, within the meaning of an applicable
income tax treaty, of such Person or
any other Person, and (vi) any other Person
so designated by the Servicer based
on an Opinion of Counsel to the effect that
any transfer to such Person may
cause the Trust or any other Holder of a
Residual Certificate to incur tax
liability that would not be imposed other
than on account of such transfer. The
terms "United States," "State" and
"international organization" shall have the
meanings set forth in Code Section 7701 or
successor provisions.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association,
joint-stock company, trust,
unincorporated organization or government
or any agency or political subdivision
thereof.
Physical Certificates: The Class 1-A-R, Class 1-A-MR, Class
1-A-LR,
Class X-B-4, Class X-B-5, Class X-B-6,
Class 2-B-4, Class 2-B-5, Class 2-B-6,
Class 5-B-4, Class 5-B-5 and Class 5-B-6
Certificates.
Plan: As defined in Section 6.02(e).
PO Component: Any of the Class 1-X-PO Component, Class 2-X-PO
Component or Class 3-X-PO Component.
PO Deferred Amount: As to any Distribution Date and each PO
Component, the sum of the amounts by which
the Component Balance of such PO
Component will be reduced on such
Distribution Date or has been reduced on prior
Distribution Dates as a result of Section
5.03(b) less the sum of (a) the PO
Recoveries with respect to the Related Loan
Group for prior Distribution Dates
and (b) the amounts distributed to such PO
Component pursuant to Section
5.02(a)(iii) on prior Distribution Dates.
As to any Distribution Date and the
Class 15-PO Certificates, the sum of the
amounts by which the Class Certificate
Balance of such Class 15-PO Certificates
will be reduced on such Distribution
Date or has been reduced on prior
Distribution Dates as a result of Section
5.03(b) less the sum of (a) the PO
Recoveries with respect to Loan Group 4 for
prior Distribution Dates and (b) the
amounts distributed to such Class 15-PO
Certificates pursuant to Section
5.02(a)(iii) on prior Distribution Dates. As to
any Distribution Date and the Class 5-PO
Certificates, the sum of the amounts by
which the Class Certificate Balance of such
Class 5-PO Certificates will be
reduced on such Distribution Date or has
been reduced on prior Distribution
Dates as a result of Section 5.03(b) less
the sum of (a) the PO Recoveries with
respect to Loan Group 5 for prior
Distribution Dates and (b) the amounts
distributed to such Class 5-PO Certificates
pursuant to Section 5.02(a)(iv) on
prior Distribution Dates.
PO Percentage: As to any Discount Mortgage Loan, 100% minus the
Non-PO Percentage for such Mortgage Loan.
As to any Mortgage Loan that is not a
Discount Mortgage Loan, 0%.
PO Principal Amount: As to any Distribution Date and Loan Group,
the
sum of the applicable PO Percentage of (a)
the principal portion of each Monthly
Payment due on each Mortgage Loan in such
Loan Group on the related Due Date,
(b) the Stated Principal Balance, as of the
date of repurchase, of each Mortgage
Loan in such Loan Group that was
repurchased by the Depositor pursuant to this
Agreement as of such Distribution Date, (c)
any Substitution Adjustment Amount
in connection with any Defective Mortgage
Loan in such Loan Group received with
respect to such Distribution Date, (d) any
Liquidation Proceeds allocable to
recoveries of principal of Mortgage Loans
in such Loan Group that are not yet
Liquidated Mortgage Loans received during
the calendar month preceding the month
of such Distribution Date, (e) with respect
to each Mortgage Loan in such Loan
Group that became a Liquidated Mortgage
Loan during the calendar month preceding
the month of such Distribution Date, the
amount of Liquidation Proceeds
(excluding Excess Proceeds) allocable to
principal received with respect to such
Mortgage Loan during the calendar month
preceding the month of such Distribution
Date with respect to such Mortgage Loan and
(f) all Principal Prepayments
received on the Mortgage Loans in such Loan
Group received during the calendar
month preceding the month of such
Distribution Date.
PO Recovery. As to any Distribution Date and Loan Group, the
lesser
of (a) (i) in the case of Group 1, Group 2
and Group 3, the PO Deferred Amount
for the Class X-PO Component of the Related
Group for such Distribution Date,
(ii) in the case of Group 4, the PO
Deferred Amount for the Class 15-PO
Certificates for such Distribution Date and
(iii) in the case of Group 5, the PO
Deferred Amount for the Class 5-PO
Certificates for such Distribution Date and
(b) an amount equal to the sum as to each
Mortgage Loan in such Loan Group as to
which there has been a Recovery received
during the calendar month preceding the
month of such Distribution Date, of the
product of (x) the PO Percentage with
respect to such Mortgage Loan and (y) the
amount of the Recovery with respect to
such Mortgage Loan.
Pool Distribution Amount: As to any Distribution Date and Loan
Group, the excess of (a) the sum of (i) the
aggregate of (A) the interest
portion of any Monthly Payment on a
Mortgage Loan in such Loan Group (net of the
Servicing Fee) and the principal portion of
any Monthly Payment on a Mortgage
Loan in such Loan Group due on the Due Date
in the month in which such
Distribution Date occurs and which is
received prior to the related
Determination Date (or in the case of any
Monthly Covered Amount, the related
Remittance Date) and (B) all Periodic
Advances and payments of Compensating
Interest allocable to such Loan Group in
respect of such Loan Group and
Distribution Date deposited to the Servicer
Custodial Account pursuant to
Section 3.08(b)(vii); (ii) all Liquidation
Proceeds received on the Mortgage
Loans in such Loan Group during the
preceding calendar month and deposited to
the Servicer Custodial Account pursuant to
Section 3.08(b)(iii); (iii) all
Principal Prepayments (other than Total
Covered Amounts) received on the
Mortgage Loans in such Loan Group during
the month preceding the month of such
Distribution Date and deposited to the
Servicer Custodial Account pursuant to
Section 3.08(b)(i) during such period and
all Total Covered Amounts received and
deposited in the Servicer Custodial Account
by the related Remittance Date; (iv)
in connection with Defective Mortgage Loans
in such Loan Group, as applicable,
the aggregate of the Repurchase Prices and
Substitution Adjustment Amounts
deposited on the related Remittance Date
pursuant to Section 3.08(b)(vi); (v)
any other amounts in the Servicer Custodial
Account deposited therein pursuant
to Sections 3.08(b)(iv), (v) and (ix) in
respect of such Distribution Date and
such Loan Group; (vi) any Reimbursement
Amount required to be included pursuant
to Section 5.02(a); and (vii) any Non-PO
Recovery with respect to such
Distribution Date over (b) any (i) amounts
permitted to be withdrawn from the
Servicer Custodial Account pursuant to
clauses (i) through (vii), inclusive, of
Section 3.11(a) in respect of such Loan
Group and (ii) amounts permitted to be
withdrawn from the Certificate Account
pursuant to clauses (i) and (ii) of
Section 3.11(b) in respect of such Loan
Group.
Pool Stated Principal Balance: As to any Distribution Date and
Loan
Group, the aggregate Stated Principal
Balances of all Mortgage Loans in such
Loan Group that were Outstanding Mortgage
Loans immediately following the Due
Date in the month preceding the month in
which such Distribution Date occurs.
Pool Stated Principal Balance (Non-PO Portion): As to any
Distribution Date and Loan Group, the sum
for each Mortgage Loan in such Loan
Group of the product of (a) the Non-PO
Percentage of such Mortgage Loan and (b)
the Stated Principal Balance of such
Mortgage Loan that was an Outstanding
Mortgage Loan immediately following the Due
Date in the month preceding the
month in which such Distribution Date
occurs.
Premium Mortgage Loan: Any Group 1 Premium Mortgage Loan, Group
2
Premium Mortgage Loan, Group 3 Premium
Mortgage Loan, Group 4 Premium Mortgage
Loan or Group 5 Premium Mortgage Loan.
Prepayment Interest Shortfall: As to any Distribution Date and
each
Mortgage Loan subject to a Principal
Prepayment received during the calendar
month preceding such Distribution Date, the
amount, if any, by which one month's
interest at the related Mortgage Interest
Rate (net of the Servicing Fee) on
such Principal Prepayment exceeds the
amount of interest paid in connection with
such Principal Prepayment.
Primary Insurance Policy: Each policy of primary mortgage
guaranty
insurance or any replacement policy
therefor with respect to any Mortgage Loan,
in each case issued by an insurer
acceptable to FNMA or FHLMC.
Principal Only Certificates: Any Class of Certificates entitled
to
distributions of principal, but to no
distributions of interest. The Class X-PO,
Class 5-PO and Class 15-PO Certificates are
the only Principal Only
Certificates.
Principal Prepayment: Any payment or other recovery of principal
on
a Mortgage Loan (other than Liquidation
Proceeds) which is received in advance
of its scheduled Due Date and is not
accompanied by an amount of interest
representing scheduled interest due on any
date or dates in any month or months
subsequent to the month of prepayment
including the principal portion of any
Total Covered Amount.
Principal Prepayment in Full: Any Principal Prepayment of the
entire
principal balance of a Mortgage Loan.
Priority Amount: As to any Distribution Date, the lesser of (i)
the
sum of the Class Certificate Balances of
the Class 1-A-1, Class 1-A-2, Class
1-A-4 and Class 1-A-8 Certificates and (ii)
the product of (a) the Non-PO
Principal Amount for Loan Group 1, (b) the
Shift Percentage and (c) the Priority
Percentage.
Priority Percentage: As to any Distribution Date, the
percentage
equivalent (carried to six places rounded
up) of a fraction the numerator of
which is the sum of the Class Certificate
Balances of the Class 1-A-1, Class
1-A-2, Class 1-A-4 and Class 1-A-8
Certificates immediately prior to such date
and the denominator of which is the Pool
Stated Principal Balance (Non-PO
Portion) for Loan Group 1.
Private Certificates: The Class X-B-4, Class X-B-5, Class
X-B-6,
Class 2-B-4, Class 2-B-5, Class 2-B-6,
Class 5-B-4, Class 5-B-5 and Class 5-B-6
Certificates.
Pro Rata Share: As to any Distribution Date and any Class of
Class
X-B Certificates, Class 2-B Certificates or
Class 5-B Certificates, as
applicable, that is not a Restricted Class,
the portion of the Subordinate
Principal Distribution Amounts allocable to
such Class, equal to the product of
the Subordinate Principal Distribution
Amounts for the Class X-B Certificates,
Class 2-B Certificates or Class 5-B
Certificates, as the case may be, for such
Distribution Date and a fraction, the
numerator of which is the related Class
Certificate Balance thereof and the
denominator of which is the aggregate Class
Certificate Balance of the Class X-B
Certificates, Class 2-B Certificates or
Class 5-B Certificates, as applicable, that
are not Restricted Classes. The Pro
Rata Share of a Restricted Class shall be
0%.
Qualified Appraiser: An appraiser of a Mortgaged Property duly
appointed by the originator of the related
Mortgage Loan, who had no interest,
direct or indirect, in such Mortgaged
Property or in any loan made on the
security thereof, whose compensation is not
affected by the approval or
disapproval of the related Mortgage Loan
and who met the minimum qualifications
of FNMA or FHLMC.
Rate Determination Date: As to any Class of LIBOR Certificates,
the
second LIBOR Business Day prior to the
beginning of the applicable Interest
Accrual Period for such Class and such
Distribution Date.
Rating Agency: Each of Fitch and S&P. If either such
organization or
a successor is no longer in existence,
"Rating Agency" shall be such nationally
recognized statistical rating organization,
or other comparable Person, as is
designated by the Depositor, notice of
which designation shall be given to the
Trustee. References herein to a given
rating or rating category of a Rating
Agency shall mean such rating category
without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan,
an
amount as of the date of such liquidation,
equal to (i) the unpaid principal
balance of the Liquidated Mortgage Loan as
of the date of such liquidation, plus
(ii) interest at the Net Mortgage Interest
Rate from the Due Date as to which
interest was last paid or advanced (and not
reimbursed) to Certificateholders up
to the Due Date in the month in which
Liquidation Proceeds are required to be
distributed on the Stated Principal Balance
of such Liquidated Mortgage Loan
from time to time, minus (iii) the
Liquidation Proceeds, if any, received during
the month in which such liquidation
occurred, to the extent applied as
recoveries of interest at the Net Mortgage
Interest Rate and to principal of the
Liquidated Mortgage Loan. With respect to
each Mortgage Loan that has become the
subject of a Deficient Valuation, if the
principal amount due under the related
Mortgage Note has been reduced, the
difference between the principal balance of
the Mortgage Loan outstanding immediately
prior to such Deficient Valuation and
the principal balance of the Mortgage Loan
as reduced by the Deficient
Valuation. With respect to each Mortgage
Loan that has become the subject of a
Debt Service Reduction and any Distribution
Date, the amount, if any, by which
the principal portion of the related
Monthly Payment has been reduced.
Record Date: The last day of the month (or, if such day is not
a
Business Day, the preceding Business Day)
preceding the month of the related
Distribution Date.
Recovery: Any amount received on a Mortgage Loan subsequent to
such
Mortgage Loan being determined to be a
Liquidated Mortgage Loan.
Refinance Mortgage Loan: Any Mortgage Loan the proceeds of
which
were not used to purchase the related
Mortgaged Property.
Regular Certificates: As defined in the Preliminary Statement
hereto.
Reimbursement Amount: As defined in Section 2.04.
Related Group: For Loan Group 1, Group 1; for Loan Group 2, Group
2
and the Class 2-B Certificates; for Loan
Group 3, Group 3; for Loan Group 4,
Group 4; for Loan Group 5, Group 5 and the
Class 5-B Certificates, for the
Crossed Loan Groups, Group 1, Group 3 and
Group 4 and the Class X-B
Certificates.
Related Loan Group: For Group 1, Loan Group 1; for Group 2,
Loan
Group 2; for Group 3, Loan Group 3; for
Group 4, Loan Group 4; for Group 5, Loan
Group 5, for the Class X-B Certificates,
the Crossed Loan Groups, for the Class
2-B Certificates, Loan Group 2 and for the
Class 5-B Certificates, Loan Group 5.
Relief Act: The Servicemembers Civil Relief Act, as it may be
amended from time to time.
Relief Act Reduction: With respect to any Distribution Date, for
any
Mortgage Loan as to which there has been a
reduction in the amount of interest
collectible thereon for the most recently
ended calendar month as a result of
the application of the Relief Act or
comparable state legislation, the amount,
if any, by which (i) interest collectible
on such Mortgage Loan for the most
recently ended calendar month is less than
(ii) interest accrued pursuant to the
terms of the Mortgage Note on the same
principal amount and for the same period
as the interest collectible on such
Mortgage Loan for the most recently ended
calendar month.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Certificate Maturity Date: The "latest possible maturity
date"
of the Regular Certificates and the
Components as that term is defined in
Section 2.07.
REMIC Provisions: Provisions of the federal income tax law
relating
to real estate mortgage investment
conduits, which appear at Section 860A
through 860G of Subchapter M of Chapter 1
of the Code, and related provisions,
and regulations promulgated thereunder, as
the foregoing may be in effect from
time to time, as well as provisions of
applicable state laws.
Remittance Date: As to any Distribution Date, by 2:00 p.m.
Eastern
time on the Business Day immediately
preceding such Distribution Date.
REO Disposition Period: As defined in Section 3.14.
REO Proceeds: Proceeds, net of any related expenses of the
Servicer,
received in respect of any REO Property
(including, without limitation, proceeds
from the rental of the related Mortgaged
Property) which are received prior to
the final liquidation of such Mortgaged
Property.
REO Property: A Mortgaged Property acquired by the Servicer on
behalf of the Trust through foreclosure or
deed-in-lieu of foreclosure in
connection with a defaulted Mortgage
Loan.
Repurchase Price: As to any Defective Mortgage Loan repurchased
on
any date pursuant to Sections 2.02 or 2.04,
an amount equal to the sum of (i)
the unpaid principal balance thereof and
(ii) the unpaid accrued interest
thereon at the applicable Mortgage Interest
Rate from the Due Date to which
interest was last paid by the Mortgagor to
the first day of the month following
the month in which such Mortgage Loan
became eligible to be repurchased.
Request for Release: The Request for Release submitted by the
Servicer to the Trustee or the Custodian on
behalf of the Trustee, substantially
in the form of Exhibit E.
Required Insurance Policy: With respect to any Mortgage Loan,
any
insurance policy which is required to be
maintained from time to time under this
Agreement in respect of such Mortgage
Loan.
Residual Certificates: The Class 1-A-R, Class 1-A-MR or Class
1-A-LR
Certificate.
Responsible Officer: When used with respect to the Trustee, any
officer of the Corporate Trust Department
of the Trustee, including any Senior
Vice President, any Vice President, any
Assistant Vice President, any Assistant
Secretary, any Trust Officer or Assistant
Trust Officer, or any other officer of
the Trustee customarily performing
functions similar to those performed by any
of the above designated officers and having
responsibility for the
administration of this Agreement.
Restricted Classes: As defined in Section 5.02(d).
S&P: Standard & Poor's, a division of The McGraw-Hill
Companies,
Inc., or any successor thereto.
Seller: Bank of America, a national banking association, or its
successor in interest, as seller of the
Mortgage Loans under the Mortgage Loan
Purchase Agreement.
Senior Certificates: Any of the Group 1 Senior Certificates, Group
2
Senior Certificates, Group 3 Senior
Certificates, Group 4 Senior Certificates,
Group 5 Senior Certificates, Class X-PO and
Class 30-IO Certificates.
Senior Credit Support Depletion Date: As to each of the Crossed
Groups, the date on which the aggregate
Class Certificate Balance of the Class
X-B Certificates is reduced to zero, as to
Loan Group 2, the date on which the
aggregate Class Certificate Balance of the
Class 2-B Certificates is reduced to
zero, and as to Loan Group 5, the date on
which the aggregate Class Certificate
Balance of the Class 5-B Certificates is
reduced to zero.
Senior Percentage: With respect to any Distribution Date and
Loan
Group, the percentage, carried six places
rounded up, obtained by dividing (i)
the aggregate Class Certificate Balance of
the Senior Certificates of the
Related Group immediately prior to such
Distribution Date, by (ii) the Pool
Stated Principal Balance (Non-PO Portion)
of such Loan Group immediately prior
to such Distribution Date.
Senior Prepayment Percentage: For any Distribution Date and
Loan
Group during the five years beginning on
the first Distribution Date, 100%. The
Senior Prepayment Percentage for any Loan
Group for any Distribution Date
occurring on or after the fifth anniversary
of the first Distribution Date will,
except as provided herein, be as follows:
for any Distribution Date in the first
year thereafter, the Senior Percentage for
such Loan Group plus 70% of the
Subordinate Percentage for such Loan Group
for such Distribution Date; for any
Distribution Date in the second year
thereafter, the Senior Percentage for such
Loan Group plus 60% of the Subordinate
Percentage for such Loan Group for such
Distribution Date; for any Distribution
Date in the third year thereafter, the
Senior Percentage for such Loan Group plus
40% of the Subordinate Percentage for
such Loan Group for such Distribution Date;
for any Distribution Date in the
fourth year thereafter, the Senior
Percentage for such Loan Group plus 20% of
the Subordinate Percentage for such Loan
Group for such Distribution Date; and
for any Distribution Date in the fifth or
later years thereafter, the Senior
Percentage for such Loan Group for such
Distribution Date (unless on any of the
foregoing Distribution Dates (i) the
Crossed Group Total Senior Percentage
exceeds the initial Crossed Group Total
Senior Percentage, in which case the
Senior Prepayment Percentage for the
Crossed Loan Groups for such Distribution
Date will once again equal 100%, (ii) the
Group 2 Total Senior Percentage
exceeds the initial Group 2 Total Senior
Percentage, in which case the Senior
Prepayment Percentage for the Loan Group 2
for such Distribution Date will once
again equal 100% and (iii) the Group 5
Total Senior Percentage exceeds the
initial Group 5 Total Senior Percentage, in
which case the Senior Prepayment
Percentage for Loan Group 5 for such
Distribution Date will once again equal
100%. Notwithstanding the foregoing, no
decrease in the Senior Prepayment
Percentage for any Crossed Loan Group will
occur unless both of the Senior Step
Down Conditions for the Crossed Loan Groups
are satisfied, no decrease in the
Senior Prepayment Percentage for Loan Group
2 will occur unless both of the
Senior Step Down Conditions for Loan Group
2 are satisfied, and no decrease in
the Senior Prepayment Percentage for Loan
Group 5 will occur unless both of the
Senior Step Down Conditions for Loan Group
5 are satisfied.
Senior Principal Distribution Amount: As to any Distribution
Date
and Loan Group, the sum of (i) the Senior
Percentage for such Loan Group of the
applicable Non-PO Percentage of the amounts
described in clauses (i) (a) through
(d) of the definition of "Non-PO Principal
Amount" for such Distribution Date
and Loan Group and (ii) the Senior
Prepayment Percentage for such Loan Group of
(1) the applicable Non-PO Percentage of the
amounts described in clauses(i) (e)
and (f) and (2) the amount described in
clause (ii) of the definition of "Non-PO
Principal Amount" for such Distribution
Date and Loan Group.
Senior Step Down Conditions: As of any Distribution Date and a
Crossed Loan Group as to which any decrease
in the Senior Prepayment Percentage
for any Crossed Loan Group applies, (i) the
outstanding principal balance of all
Mortgage Loans in such Loan Groups
(including, for this purpose, any Mortgage
Loans in foreclosure, any REO Property and
any Mortgage Loan for which the
Mortgagor has filed for bankruptcy after
the Closing Date) delinquent 60 days or
more (averaged over the preceding six-month
period), as a percentage of the
aggregate Class Certificate Balance of the
Class X-B Certificates, is not equal
to or greater than 50% or (ii) cumulative
Realized Losses with respect to the
Mortgage Loans in such Loan Groups as of
the applicable Distribution Date do not
exceed the percentages of the Original
Subordinate Certificate Balance for the
Class X-B Certificates set forth below:
Percentage of
Original Subordinate
Distribution Date Occurring
Certificate Balance
---------------------------
-------------------
January 2010 through December 2010
30%
January 2011 through December 2011
35%
January 2012 through December 2012
40%
January 2013 through December 2013
45%
January 2014 and thereafter
50%
As of any Distribution Date and Loan Group 2 as to which any
decrease in the Senior Prepayment
Percentage for Loan Group 2 applies, (i) the
outstanding principal balance of all
Mortgage Loans in such Loan Group
(including, for this purpose, any Mortgage
Loans in foreclosure, any REO
Property and any Mortgage Loan for which
the Mortgagor has filed for bankruptcy
after the Closing Date) delinquent 60 days
or more (averaged over the preceding
six-month period), as a percentage of the
aggregate Class Certificate Balance of
the Class 2-B Certificates, is not equal to
or greater than 50% or (ii)
cumulative Realized Losses with respect to
the Mortgage Loans in such Loan Group
as of the applicable Distribution Date do
not exceed the percentages of the
Original Subordinate Certificate Balance
for the Class 2-B Certificates set
forth below:
Percentage of
Original Subordinate
Distribution Date Occurring
Certificate Balance
---------------------------
-------------------
January 2010 through December 2010
30%
January 2011 through December 2011
35%
January 2012 through December 2012
40%
January 2013 through December 2013
45%
January 2014 and thereafter
50%
As of any Distribution Date and Loan Group 5 as to which any
decrease in the Senior Prepayment
Percentage for Loan Group 5 applies, (i) the
outstanding principal balance of all
Mortgage Loans in such Loan Group
(including, for this purpose, any Mortgage
Loans in foreclosure, any REO
Property and any Mortgage Loan for which
the Mortgagor has filed for bankruptcy
after the Closing Date) delinquent 60 days
or more (averaged over the preceding
six-month period), as a percentage of the
aggregate Class Certificate Balance of
the Class 5-B Certificates, is not equal to
or greater than 50% or (ii)
cumulative Realized Losses with respect to
the Mortgage Loans in such Loan Group
as of the applicable Distribution Date do
not exceed the percentages of the
Original Subordinate Certificate Balance
for the Class 5-B Certificates set
forth below:
Percentage of
Original Subordinate
Distribution Date Occurring
Certificate Balance
---------------------------
-------------------
January 2010 through December 2010
30%
January 2011 through December 2011
35%
January 2012 through December 2012
40%
January 2013 through December 2013
45%
January 2014 and thereafter
50%
Servicer: Bank of America, N.A., a national banking association,
or
its successor in interest, in its capacity
as servicer of the Mortgage Loans, or
any successor servicer appointed as herein
provided.
Servicer Advance Date: As to any Distribution Date, 11:30 a.m.,
Eastern time, on the Business Day
immediately preceding such Distribution Date.
Servicer Custodial Account: The separate Eligible Account or
Accounts created and maintained by the
Servicer pursuant to Section 3.08(b).
Servicer Custodial Account Reinvestment Income: For each
Distribution Date, all income and gains net
of any losses realized since the
preceding Distribution Date from Permitted
Investments of funds in the Servicer
Custodial Account.
Servicer's Certificate: The monthly report required by Section
4.01.
Servicing Advances: All customary, reasonable and necessary "out
of
pocket" costs and expenses incurred in the
performance by the Servicer of its
servicing obligations, including, but not
limited to (i) the preservation,
restoration and protection of a Mortgaged
Property, (ii) expenses reimbursable
to the Servicer pursuant to Section 3.14
and any enforcement or judicial
proceedings, including foreclosures, (iii)
the management and liquidation of any
REO Property and (iv) compliance with the
obligations under Section 3.12.
Servicing Compensation: With respect to each Distribution Date,
the
sum of (i) the aggregate Servicing Fee for
such Distribution Date subject to
reduction as provided in Section 3.17, (ii)
any Ancillary Income, (iii) Excess
Proceeds for the preceding month and (iv)
the Servicer Custodial Account
Reinvestment Income for such Distribution
Date.
Servicing Fee: With respect to each Mortgage Loan and
Distribution
Date, the amount of the fee payable to the
Servicer, which shall, for such
Distribution Date, be equal to one-twelfth
of the product of the Servicing Fee
Rate with respect to such Mortgage Loan and
the Stated Principal Balance of such
Mortgage Loan. Such fee shall be payable
monthly, computed on the basis of the
same Stated Principal Balance and period
respecting which any related interest
payment on a Mortgage Loan is computed. The
Servicer's right to receive the
Servicing Fee is limited to, and payable
solely from, the interest portion
(including recoveries with respect to
interest from Liquidation Proceeds and
other proceeds, to the extent permitted by
Section 3.11) of related Monthly
Payments collected by the Servicer, or as
otherwise provided under Section 3.11.
Servicing Fee Rate: With respect to each Mortgage Loan, 0.250%
per
annum.
Servicing File: The items pertaining to a particular Mortgage
Loan
referred to in Exhibit J hereto, and any
additional documents required to be
added to the Servicing File pursuant to the
Agreement.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and
servicing of the Mortgage Loans whose
name appears on a list of servicing
officers furnished to the Trustee by the
Servicer, as such list may from time to
time be amended.
Servicing Transfer Costs: All reasonable costs and expenses
incurred
by the Trustee in connection with the
transfer of servicing from a predecessor
servicer, including, without limitation,
any costs or expenses associated with
the complete transfer of all servicing data
and the completion, correction or
manipulation of such servicing data as may
be required by the Trustee to correct
any errors or insufficiencies in the
servicing data or otherwise to enable the
Trustee to service the Mortgage Loans
properly and effectively.
Shift Percentage: As to any Distribution Date, the percentage
indicated below:
Distribution Date Occurring In
Shift Percentage
----------------------------------
----------------
January 2005 through December 2009
0%
January 2010 through December 2010
30%
January 2011 through December 2011
40%
January 2012 through December 2012
60%
January 2013 through December 2013
80%
January 2014 and thereafter
100%
Similar Law: As defined in Section 6.02(e).
Stated Principal Balance: As to any Mortgage Loan and date, the
unpaid principal balance of such Mortgage
Loan as of the Due Date immediately
preceding such date as specified in the
amortization schedule at the time
relating thereto (before any adjustment to
such amortization schedule by reason
of any moratorium or similar waiver or
grace period) after giving effect to any
previous partial Principal Prepayments and
Liquidation Proceeds allocable to
principal (other than with respect to any
Liquidated Mortgage Loan) and to the
payment of principal due on such Due Date
and irrespective of any delinquency in
payment by the related Mortgagor, and after
giving effect to any Deficient
Valuation.
Subordinate Balance Ratio: As of any date of determination, the
ratio among the principal balances of the
Class 1-LS Interest, the Class 3-LS
Interest and the Class 4-LS Interest, equal
to the ratio among the Group
Subordinate Amount of Loan Group 1, the
Group Subordinate Amount of Loan Group 3
and the Group Subordinate Amount of Loan
Group 4.
Subordinate Certificates: The Class X-B, Class 2-B and Class
5-B
Certificates.
Subordinate Percentage: As of any Distribution Date and Loan
Group,
100% minus the Senior Percentage for such
Loan Group for such Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date
and
Loan Group, 100% minus the Senior
Prepayment Percentage for such Loan Group for
such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and Loan Group, an amount
equal to the sum of (i) the
Subordinate Percentage for such Loan Group
of the applicable Non-PO Percentage
of the amounts described in clauses (i) (a)
through (d) of the definition of
"Non-PO Principal Amount" for such
Distribution Date and Loan Group and (ii) the
Subordinate Prepayment Percentage of (1)
the applicable Non-PO Percentage of the
amounts described in clauses (i) (e) and
(f) and (2) the amount described in
clause (ii) of the definition of "Non-PO
Principal Amount" for such Distribution
Date and Loan Group.
Subservicer: Any Person with which the Servicer has entered into
a
Subservicing Agreement and which satisfies
the requirements set forth therein.
Subservicing Agreement: Any subservicing agreement (which, in
the
event the Subservicer is an affiliate of
the Servicer, need not be in writing)
between the Servicer and any Subservicer
relating to servicing and/or
administration of certain Mortgage Loans as
provided in Section 3.02.
Substitute Mortgage Loan: A Mortgage Loan substituted for a
Defective Mortgage Loan which must, on the
date of such substitution (i) have a
Stated Principal Balance, after deduction
of the principal portion of the
Monthly Payment due in the month of
substitution, not in excess of, and not more
than 10% less than, the Stated Principal
Balance of the Defective Mortgage Loan;
(ii) have a Net Mortgage Interest Rate
equal to that of the Defective Mortgage
Loan; (iii) have a Loan-to-Value Ratio not
higher than that of the Defective
Mortgage Loan; (iv) have a remaining term
to maturity not greater than (and not
more than one year less than) that of the
Defective Mortgage Loan; and (v)
comply with each Mortgage Loan
representation and warranty set forth in this
Agreement relating to the Defective
Mortgage Loan. More than one Substitute
Mortgage Loan may be substituted for a
Defective Mortgage Loan if such
Substitute Mortgage Loans meet the
foregoing attributes in the aggregate.
Substitution Adjustment Amount: As defined in Section 2.02.
Tax Matters Person: Any person designated as "tax matters person"
in
accordance with Section 5.06 and the manner
provided under Treasury Regulation
ss. 1.860F-4(d) and Treasury Regulation ss.
301.6231(a)(7)-1.
Telerate page 3750: As defined in Section 5.09.
Total Covered Amount: As defined in the Mortgage Loan Purchase
Agreement.
Treasury Regulations: The final and temporary regulations
promulgated under the Code by the U.S.
Department of the Treasury.
Trust: The trust created by this Agreement.
Trust Estate: The corpus of the Trust created to the extent
described herein, consisting of the
Mortgage Loans, such assets as shall from
time to time be identified as deposited in
the Servicer Custodial Account or the
Certificate Account, in accordance with
this Agreement, REO Property, the
Primary Insurance Policies, any other
Required Insurance Policy, the right to
receive any BPP Mortgage Loan Payment and
the right to receive amounts, if any,
payable on behalf of any Mortgagor from the
Buy-Down Account relating to any
Buy-Down Mortgage Loan. The Buy-Down
Account shall not be part of the Trust
Estate.
Trustee: Wells Fargo Bank, N.A., and its successors-in-interest
and,
if a successor trustee is appointed
hereunder, such successor, as trustee.
Trustee Fee: As to any Distribution Date and Loan Group, an
amount
equal to one-twelfth of the Trustee Fee
Rate multiplied by the aggregate Stated
Principal Balance of the Mortgage Loans in
the Related Loan Group immediately
following the Due Date in the month
preceding the month in which such
Distribution Date occurs.
Trustee Fee Rate: With respect to each Mortgage Loan, 0.0035%
per
annum.
Uncertificated Lower-Tier Interest: A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Middle-Tier REMIC and is
entitled to monthly distributions as
provided in Section 5.02(a) hereof. Any of
the Class 1-L Interest, Class 1-LS
Interest, Class 1-LIO Interest, Class 1-LPO
Interest, Class 2-L Interest, Class 2-LIO
Interest, Class 2-LPO Interest, Class
3-L Interest, Class 3-LS Interest, Class
3-LIO Interest, Class 3-LPO Interest,
Class 4-L Interest, Class 4-LS Interest,
Class 4-LIO Interest, Class 4-LPO
Interest, Class 5-L Interest, Class 5-LIO
Interest and Class 5-LPO Interest are
Uncertificated Lower-Tier Interests.
Uncertificated Middle-Tier Interest: A regular interest in the
Middle-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and is
entitled to monthly distributions as
provided in Section 5.02(a) hereof. Any of
the Class 1-A-M1 Interest, Class 1-A-M4
Interest, Class 1-A-M10 Interest, Class
1-A-M13 Interest, Class 1-A-M14 Interest,
Class 1-A-MUR Interest, Class 2-A-M1
Interest, Class 3-A-M1 Interest, Class
4-A-M1 Interest, Class 5-A-M1 Interest,
Class 1-X-MPO Interest, Class 2-X-MPO
Interest, Class 3-X-MPO Interest,
Class15-MPO Interest, Class 5-PO Interest,
Class 1-30-MIO Interest, Class
2-30-MIO Interest, Class 20-MIO Interest,
Class 15-MIO Interest, Class 5-MIO
Interest, Class X-B-M1 Interest, Class
X-B-M2 Interest, Class X-B-M3 Interest,
Class X-B-M4 Interest, Class X-B-M5
Interest, Class X-B-M6 Interest, Class
2-B-M1 Interest, Class 2-B-M2 Class 2-B-M3
Interest, Class 2-B-M4 Interest,
Class 2-B-M5 Interest, Class 2-B-M6
Interest, Class 5-B-M1 Interest, Class
5-B-M2 Interest, Class 5-B-M3 Interest,
Class 5-B-M4 Interest, Class 5-B-M5
Interest and Class 5-B-M6 Interest Interest
are Uncertificated Middle-Tier
Interests.
Underwriting Guidelines: The underwriting guidelines of Bank of
America.
Upper-Tier Certificate: Any one of the Senior Certificates
(other
than the Class 1-A-MR and Class 1-A-LR
Certificates) and the Class X-B, Class
2-B and Class 5-B Certificates.
Upper-Tier Certificate Sub-Account: The sub-account of the
Certificate Account designated by the
Trustee pursuant to Section 3.08(f).
Upper-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the
Uncertificated Middle-Tier Interests and such
amounts as shall from time to time be
deemed to be held in the Upper-Tier
Certificate Sub-Account.
U.S. Person: A citizen or resident of the United States, a
corporation or partnership (unless, in the
case of a partnership, Treasury
Regulations are adopted that provide
otherwise) created or organized in or under
the laws of the United States, any state
thereof or the District of Columbia,
including an entity treated as a
corporation or partnership for federal income
tax purposes, an estate whose income is
subject to United States federal income
tax regardless of its source, or a trust if
a court within the United States is
able to exercise primary supervision over
the administration of such trust, and
one or more such U.S. Persons have the
authority to control all substantial
decisions of such trust (or, to the extent
provided in applicable Treasury
Regulations, certain trusts in existence on
August 20, 1996 which are eligible
to elect to be treated as U.S.
Persons).
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any
Certificate. As of any date of
determination, (a) 1% of all Voting Rights
shall be allocated to the Holders of
the Class 1-A-9 Certificates, (b) 1% of all
Voting Rights shall be allocated to
the Holders of the Class 1-A-12
Certificates, (c) 1% of all Voting Rights shall
be allocated to the Holders of the Class
1-A-15 Certificates, (d) 1% of all
Voting Rights shall be allocated to the
Holders of the Class 20-IO Certificates,
(e) 1% of all Voting Rights shall be
allocated to the Holders of the Class 5-IO
Certificates, (f) 1% of all Voting Rights
shall be allocated collectively to the
Holders of the Residual Certificates, (g)
1% of all Voting Rights shall be
allocated to the Holders of the Class 15-IO
Certificates, (h) 1% of all Voting
Rights shall be allocated to the Holders of
the Class 30-IO Certificates and (i)
the remaining Voting Rights shall be
allocated among Holders of the remaining
Classes of Certificates in proportion to
the Certificate Balances of their
respective Certificates on such date.
Section 1.02 Interest Calculations. All
calculations of interest will be made on a
360-day year consisting of twelve
30-day months. All dollar amounts
calculated hereunder shall be rounded to the
nearest penny with one-half of one penny
being rounded down.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and
delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to
the Trustee on behalf of the Trust
for the benefit of the Certificateholders,
without recourse, all the right,
title and interest of the Depositor in and
to the Mortgage Loans, including all
interest and principal received on or with
respect to the Mortgage Loans (other
than payments of principal and interest due
and payable on the Mortgage Loans on
or before the Cut-off Date). The foregoing
sale, transfer, assignment and set
over does not and is not intended to result
in a creation of an assumption by
the Trustee of any obligation of the
Depositor or any other Person in connection
with the Mortgage Loans or any agreement or
instrument relating thereto, except
as specifically set forth herein. In
addition, the Depositor, concurrently with
the execution and delivery hereof, hereby
sells, transfers, assigns, sets over
and otherwise conveys to the Trustee on
behalf of the Trust for the benefit of
the Certificateholders, without recourse,
the Depositor's rights to receive any
BPP Mortgage Loan Payment. It is agreed and
understood by the parties hereto
that it is not intended that any mortgage
loan be included in the Trust that is
a "High-Cost Home Loan" as defined in any
of (i) the New Jersey Home Ownership
Act effective November 27, 2003, (ii) the
New Mexico Home Loan Protection Act
effective January 1, 2004 or (iii) the
Massachusetts Predatory Home Loan
Practices Act effective November 7,
2004.
(b) In connection with such transfer and assignment, the
Depositor
shall deliver or cause to be delivered to
the Trustee, for the benefit of the
Certificateholders, the following documents
or instruments with respect to each
Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed by manual or facsimile
signature
in the following form: "Pay to the order of Wells Fargo Bank,
N.A., as
trustee for the holders of the Banc of America Mortgage
Securities, Inc. Mortgage Pass-Through Certificates, Series
2004-11,
without
recourse," with all necessary intervening endorsements showing
a
complete
chain of endorsement from the originator to the Trustee (each
such
endorsement being sufficient to transfer all right, title and
interest
of the party so endorsing, as noteholder or assignee thereof,
in
and to
that Mortgage Note);
(ii) except as provided below, the original recorded Mortgage
with
evidence
of a recording thereon, or if any such Mortgage has not been
returned
from the applicable recording office or has been lost, or if
such
public
recording office retains the original recorded Mortgage, a copy
of
such Mortgage
certified by the Depositor as being a true and correct copy
of the
Mortgage;
(iii) subject to the provisos at the end of this paragraph, a
duly
executed
Assignment of Mortgage to "Wells Fargo Bank, N.A., as trustee
for
the
holders of the Banc of America Mortgage Securities, Inc.,
Mortgage
Pass-Through Certificates, Series 2004-11" (which may be included
in a
blanket
assignment or assignments), together with, except as provided
below,
originals of all interim recorded assignments of such mortgage or
a
copy of
such interim assignment certified by the Depositor as being a
true
and
complete copy of the original recorded intervening assignments
of
Mortgage
(each such assignment, when duly and validly completed, to be
in
recordable
form and sufficient to effect the assignment of and transfer to
the
assignee thereof, under the Mortgage to which the assignment
relates);
provided
that, if the related Mortgage has not been returned from the
applicable
public recording office, such Assignment of Mortgage may
exclude
the information to be provided by the recording office; and
provided,
further, if the related Mortgage has been recorded in the name
of Mortgage Electronic
Registration Systems, Inc. ("MERS") or its
designee,
no Assignment of Mortgage in favor of the Trustee will be
required
to be prepared or delivered and instead, the Servicer shall
take
all
actions as are necessary to cause the Trust to be shown as the
owner
of the
related Mortgage Loan on the records of MERS for purposes of
the
system of
recording transfers of beneficial ownership of mortgages
maintained
by MERS;
(iv) the originals of all assumption, modification, consolidation
or
extension
agreements, if any, with evidence of recording thereon, if any;
(v) any of (A) the original or duplicate original mortgagee
title
insurance
policy and all riders thereto, (B) a title search showing no
lien
(other than standard exceptions of the type described in Section
2.04
(viii)) on
the Mortgaged Property senior to the lien of the Mortgage or
(C) an
opinion of counsel of the type customarily rendered in the
applicable
jurisdiction in lieu of a title insurance policy;
(vi) the original of any guarantee executed in connection with
the
Mortgage
Note;
(vii) for each Mortgage Loan, if any, which is secured by a
residential long-term lease, a copy of the lease with evidence
of
recording
indicated thereon, or, if the lease is in the process of being
recorded,
a photocopy of the lease, certified by an officer of the
respective
prior owner of such Mortgage Loan or by the applicable title
insurance
company, closing/settlement/escrow agent or company or closing
attorney
to be a true and correct copy of the lease transmitted for
recordation;
(viii)the original of any security agreement, chattel mortgage
or
equivalent
document executed in connection with the Mortgage; and
(ix) for each Mortgage Loan secured by Co-op Shares, the
originals
of the
following documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate
UCC financing statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the Trustee
with
evidence of recording thereon (or in a form suitable for
recordation).
provided, however, that on the Closing
Date, with respect to item (iii), the
Depositor has delivered to the Trustee a
copy of such Assignment of Mortgage in
blank and has caused the Servicer to retain
the completed Assignment of Mortgage
for recording as described below, unless
such Mortgage has been recorded in the
name of MERS or its designee. In addition,
if the Depositor is unable to deliver
or cause the delivery of any original
Mortgage Note due to the loss of such
original Mortgage Note, the Depositor may
deliver a copy of such Mortgage Note,
together with a lost note affidavit, and
shall thereby be deemed to have
satisfied the document delivery
requirements of this Section 2.01(b).
If in connection with any Mortgage Loans, the Depositor cannot
deliver (A) the Mortgage, (B) all interim
recorded assignments, (C) all
assumption, modification, consolidation or
extension agreements, if any, or (D)
the lender's title policy (together with
all riders thereto) satisfying the
requirements of clause (ii), (iii), (iv) or
(v) above, respectively,
concurrently with the execution and
delivery hereof because such document or
documents have not been returned from the
applicable public recording office in
the case of clause (ii), (iii) or (iv)
above, or because the title policy has
not been delivered to either the Servicer
or the Depositor by the applicable
title insurer in the case of clause (v)
above, the Depositor shall promptly
deliver or cause to be delivered to the
Trustee or the Custodian on behalf of
the Trustee, in the case of clause (ii),
(iii) or (iv) above, such Mortgage,
such interim assignment or such assumption,
modification, consolidation or
extension agreement, as the case may be,
with evidence of recording indicated
thereon upon receipt thereof from the
public recording office, but in no event
shall any such delivery of any such
documents or instruments be made later than
one year following the Closing Date,
unless, in the case of clause (ii), (iii)
or (iv) above, there has been a continuing
delay at the applicable recording
office or, in the case of clause (v), there
has been a continuing delay at the
applicable insurer and the Depositor has
delivered the Officer's Certificate to
such effect to the Trustee. The Depositor
shall forward or cause to be forwarded
to the Trustee (1) from time to time
additional original documents evidencing an
assumption or modification of a Mortgage
Loan and (2) any other documents
required to be delivered by the Depositor
or the Servicer to the Trustee or the
Custodian on the Trustee's behalf. In the
event that the original Mortgage is
not delivered and in connection with the
payment in full of the related Mortgage
Loan the public recording office requires
the presentation of a "lost
instruments affidavit and indemnity" or any
equivalent document, because only a
copy of the Mortgage can be delivered with
the instrument of satisfaction or
reconveyance, the Servicer shall prepare,
execute and deliver or cause to be
prepared, executed and delivered, on behalf
of the Trust, such a document to the
public recording office.
As promptly as practicable subsequent to such transfer and
assignment, and in any event, within 30
days thereafter, the Servicer shall
(except for any Mortgage which has been
recorded in the name of MERS or its
designee) (I) cause each Assignment of
Mortgage to be in proper form for
recording in the appropriate public office
for real property records within 30
days of the Closing Date and (II) at the
Depositor's expense, cause to be
delivered for recording in the appropriate
public office for real property
records the Assignments of the Mortgages to
the Trustee, except that, with
respect to any Assignment of a Mortgage as
to which the Servicer has not
received the information required to
prepare such assignment in recordable form,
the Servicer's obligation to do so and to
deliver the same for such recording
shall be as soon as practicable after
receipt of such information and in any
event within 30 days after the receipt
thereof and, no recording of an
Assignment of Mortgage will be required in
a state if either (i) the Depositor
furnishes to the Trustee an unqualified
Opinion of Counsel reasonably acceptable
to the Trustee to the effect that
recordation of such assignment is not
necessary under applicable state law to
preserve the Trustee's interest in the
related Mortgage Loan against the claim of
any subsequent transferee of such
Mortgage Loan or any successor to, or
creditor of, the Depositor or the
originator of such Mortgage Loan or (ii)
the recordation of an Assignment of
Mortgage in such state is not required by
either Rating Agency in order to
obtain the initial ratings on the
Certificates on the Closing Date. Set forth on
Exhibit L attached hereto is a list of all
states where recordation is required
by either Rating Agency to obtain the
initial ratings of the Certificates. The
Trustee may rely and shall be protected in
relying upon the information
contained in such Exhibit L.
In the case of Mortgage Loans that have been prepaid in full as
of
the Closing Date, the Depositor, in lieu of
delivering the above documents to
the Trustee, or the Custodian on the
Trustee's behalf, will cause the Servicer
to deposit in the Servicer Custodial
Account the portion of such payment that is
required to be deposited in the Servicer
Custodial Account pursuant to Section
3.08.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.
Subject to the provisions of the following
paragraph, the Trustee declares that
it, or the Custodian as its agent, will
hold the documents referred to in
Section 2.01 and the other documents
delivered to it constituting the Mortgage
Files, and that it will hold such other
assets as are included in the Trust
Estate, in trust for the exclusive use and
benefit of all present and future
Certificateholders. Upon execution and
delivery of this document, the Trustee
shall deliver or cause the Custodian to
deliver to the Depositor and the
Servicer a certification in the form of
Exhibit M hereto (the "Initial
Certification") to the effect that, except
as may be specified in a list of
exceptions attached thereto, it has
received the original Mortgage Note relating
to each of the Mortgage Loans listed on the
Mortgage Loan Schedule.
Within 90 days after the execution and delivery of this
Agreement,
the Trustee shall review, or cause the
Custodian to review, the Mortgage Files
in its possession, and shall deliver to the
Depositor and the Servicer a
certification in the form of Exhibit N
hereto (the "Final Certification") to the
effect that, as to each Mortgage Loan
listed in the Mortgage Loan Schedule,
except as may be specified in a list of
exceptions attached to such Final
Certification, such Mortgage File contains
all of the items required to be
delivered pursuant to Section 2.01(b).
If, in the course of such review, the Trustee or the Custodian
finds
any document constituting a part of a
Mortgage File which does not meet the
requirements of Section 2.01 or is omitted
from such Mortgage File, the Trustee
shall promptly so notify the Servicer, the
Depositor, or shall cause the
Custodian to promptly so notify the
Servicer and the Depositor. In performing
any such review, the Trustee or the
Custodian may conclusively rely on the
purported genuineness of any such document
and any signature thereon. It is
understood that the scope of the Trustee's
or the Custodian's review of the
Mortgage Files is limited solely to
confirming that the documents listed in
Section 2.01 have been received and further
confirming that any and all
documents delivered pursuant to Section
2.01 appear on their face to have been
executed and relate to the Mortgage Loans
identified in the Mortgage Loan
Schedule based solely upon the review of
items (i) and (xi) in the definition of
Mortgage Loan Schedule. Neither the Trustee
nor the Custodian shall have any
responsibility for determining whether any
document is valid and binding,
whether the text of any assignment or
endorsement is in proper or recordable
form, whether any document has been
recorded in accordance with the requirements
of any applicable jurisdiction, or whether
a blanket assignment is permitted in
any applicable jurisdiction. The Depositor
hereby covenants and agrees that it
will promptly correct or cure such defect
within 90 days from the date it was so
notified of such defect and, if the
Depositor does not correct or cure such
defect within such period, the Depositor
will either (a) substitute for the
related Mortgage Loan a Substitute Mortgage
Loan, which substitution shall be
accomplished in the manner and subject to
the conditions set forth below or (b)
purchase such Mortgage Loan from the
Trustee at the Repurchase Price for such
Mortgage Loan; provided, however, that in
no event shall such a substitution
occur more than two years from the Closing
Date; provided, further, that such
substitution or repurchase shall occur
within 90 days of when such defect was
discovered if such defect will cause the
Mortgage Loan not to be a "qualified
mortgage" within the meaning of Section
860G(a)(3) of the Code.
With respect to each Substitute Mortgage Loan the Depositor
shall
deliver to the Trustee, for the benefit of
the Certificateholders, the Mortgage
Note, the Mortgage, the related Assignment
of Mortgage (except for any Mortgage
which has been recorded in the name of MERS
or its designee), and such other
documents and agreements as are otherwise
required by Section 2.01, with the
Mortgage Note endorsed and the Mortgage
assigned as required by Section 2.01. No
substitution is permitted to be made in any
calendar month after the
Determination Date for such month. Monthly
Payments due with respect to any such
Substitute Mortgage Loan in the month of
substitution shall not be part of the
Trust Estate and will be retained by the
Depositor. For the month of
substitution, distributions to
Certificateholders will include the Monthly
Payment due for such month on any Defective
Mortgage Loan for which the
Depositor has substituted a Substitute
Mortgage Loan.
The Servicer shall amend the Mortgage Loan Schedule for the
benefit
of the Certificateholders to reflect the
removal of each Mortgage Loan that has
become a Defective Mortgage Loan and the
substitution of the Substitute Mortgage
Loan or Loans and the Servicer shall
deliver the amended Mortgage Loan Schedule
to the Trustee and the Custodian. Upon such
substitution, each Substitute
Mortgage Loan shall be subject to the terms
of this Agreement in all respects,
and the Depositor shall be deemed to have
made to the Trustee with respect to
such Substitute Mortgage Loan, as of the
date of substitution, the
representations and warranties made
pursuant to Section 2.04. Upon any such
substitution and the deposit to the
Servicer Custodial Account of any required
Substitution Adjustment Amount (as
described in the next paragraph) and receipt
of a Request for Release, the Trustee shall
release, or shall direct the
Custodian to release, the Mortgage File
relating to such Defective Mortgage Loan
to the Depositor and shall execute and
deliver at the Depositor's direction such
instruments of transfer or assignment
prepared by the Depositor, in each case
without recourse, as shall be necessary to
vest title in the Depositor, or its
designee, to the Trustee's interest in any
Defective Mortgage Loan substituted
for pursuant to this Section 2.02.
For any month in which the Depositor substitutes one or more
Substitute Mortgage Loans for one or more
Defective Mortgage Loans, the amount
(if any) by which the aggregate principal
balance of all such Substitute
Mortgage Loans in a Loan Group as of the
date of substitution is less than the
aggregate Stated Principal Balance of all
such Defective Mortgage Loans in such
Loan Group (after application of the
principal portion of the Monthly Payments
due in the month of substitution) (the
"Substitution Adjustment Amount" for such
Loan Group) plus an amount equal to the
aggregate of any unreimbursed Advances
with respect to such Defective Mortgage
Loans shall be deposited into the
Servicer Custodial Account by the Depositor
on or before the Remittance Date for
the Distribution Date in the month
succeeding the calendar month during which
the related Mortgage Loan is required to be
purchased or replaced hereunder.
The Trustee shall retain or shall cause the Custodian to retain
possession and custody of each Mortgage
File in accordance with and subject to
the terms and conditions set forth herein.
The Servicer shall promptly deliver
to the Trustee, upon the execution or, in
the case of documents requiring
recording, receipt thereof, the originals
of such other documents or instruments
constituting the Mortgage File as come into
the Servicer's possession from time
to time.
It is understood and agreed that the obligation of the Depositor
to
substitute for or to purchase any Mortgage
Loan which does not meet the
requirements of Section 2.01 shall
constitute the sole remedy respecting such
defect available to the Trustee and any
Certificateholder against the Depositor.
The Trustee or the Custodian, on behalf of the Trustee, shall
be
under no duty or obligation (i) to inspect,
review or examine any such
documents, instruments, certificates or
other papers to determine that they are
genuine, enforceable, or appropriate for
the represented purpose or that they
are other than what they purport to be on
their face or (ii) to determine
whether any Mortgage File should include
any of the documents specified in
Section 2.01(b)(iv), (vi), (vii), (viii)
and (ix). In connection with making the
certifications required hereunder, to the
extent a title search or opinion of
counsel has been provided in lieu of a
title policy for any Mortgage Loan, the
Trustee shall only be responsible for
confirming that a title search or opinion
of counsel has been provided for such
Mortgage Loan and shall not be deemed to
have certified that the content of the
title search or opinion of counsel is
sufficient to meet the requirements of
Section 2.01(b)(v).
Section 2.03 Representations, Warranties and Covenants of the
Servicer. The Servicer hereby makes the
following representations and warranties
to the Depositor and the Trustee, as of the
Closing Date:
(i) The Servicer is a national banking association duly
organized,
validly
existing, and in good standing under the federal laws of the
United
States of America and has all licenses necessary to carry on
its
business
as now being conducted and is licensed, qualified and in good
standing
in each of the states where a Mortgaged Property is located if
the laws
of such state require licensing or qualification in order to
conduct
business of the type conducted by the Servicer. The Servicer
has
power and
authority to execute and deliver this Agreement and to perform
in
accordance herewith; the execution, delivery and performance of
this
Agreement
(including all instruments of transfer to be delivered pursuant
to this
Agreement) by the Servicer and the consummation of the
transactions contemplated hereby have been duly and validly
authorized.
This
Agreement, assuming due authorization, execution and delivery by
the
other
parties hereto, evidences the valid, binding and enforceable
obligation
of the Servicer, subject to applicable law except as
enforceability
may be limited by (A) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws
affecting
the
enforcement of creditors' rights generally or creditors of
national
banks and
(B) general principles of equity, whether enforcement is sought
in a
proceeding in equity or at law. All requisite corporate action
has
been taken
by the Servicer to make this Agreement valid and binding upon
the
Servicer in accordance with its terms.
(ii) No consent, approval, authorization or order is required
for
the
transactions contemplated by this Agreement from any court,
governmental agency or body, or federal or state regulatory
authority
having
jurisdiction over the Servicer is required or, if required,
such
consent,
approval, authorization or order has been or will, prior to the
Closing
Date, be obtained.
(iii) The consummation of the transactions contemplated by this
Agreement
are in the ordinary course of business of the Servicer and will
not result
in the breach of any term or provision of the charter or
by-laws of
the Servicer or result in the breach of any term or provision
of, or
conflict with or constitute a default under or result in the
acceleration of any obligation under, any agreement, indenture or
loan or
credit
agreement or other instrument to which the Servicer or its
property
is
subject, or result in the violation of any law, rule,
regulation,
order,
judgment or decree to which the Servicer or its property is
subject.
(iv) There is no action, suit, proceeding or investigation
pending
or, to the
best knowledge of the Servicer, threatened against the Servicer
which,
either individually or in the aggregate, would result in any
material
adverse change in the business, operations, financial
condition,
properties
or assets of the Servicer, or in any material impairment of the
right or
ability of the Servicer to carry on its business substantially
as
now
conducted or which would draw into question the validity of
this
Agreement
or the Mortgage Loans or of any action taken or to be taken in
connection
with the obligations of the Servicer contemplated herein, or
which
would materially impair the ability of the Servicer to perform
under
the terms
of this Agreement.
The representations and warranties made pursuant to this
Section
2.03 shall survive delivery of the
respective Mortgage Files to the Trustee for
the benefit of the Certificateholders.
Section 2.04 Representations and Warranties of the Depositor as
to
the Mortgage Loans. The Depositor hereby
represents and warrants to the Trustee
with respect to the Mortgage Loans or each
Mortgage Loan, as the case may be, as
of the date hereof or such other date set
forth herein that as of the Closing
Date:
(i) The information set forth in the Mortgage Loan Schedule is
true
and
correct in all material respects.
(ii) There are no delinquent taxes, ground rents, governmental
assessments, insurance premiums, leasehold payments, including
assessments
payable in
future installments or other outstanding charges affecting the
lien
priority of the related Mortgaged Property.
(iii) The terms of the Mortgage Note and the Mortgage have not
been
impaired,
waived, altered or modified in any respect, except by written
instruments, recorded in the applicable public recording office
if
necessary
to maintain the lien priority of the Mortgage, and which have
been
delivered to the Trustee; the substance of any such waiver,
alteration
or modification has been approved by the insurer under the
Primary
Insurance Policy, if any, the title insurer, to the extent
required
by the related policy, and is reflected on the Mortgage Loan
Schedule.
No instrument of waiver, alteration or modification has been
executed, and no Mortgagor has
been released, in whole or in part, except
in
connection with an assumption agreement approved by the insurer
under
the
Primary Insurance Policy, if any, the title insurer, to the
extent
required
by the policy, and which assumption agreement has been
delivered
to the
Trustee.
(iv) The Mortgage Note and the Mortgage are not subject to any
right
of
rescission, set-off, counterclaim or defense, including the defense
of
usury, nor
will the operation of any of the terms of the Mortgage Note and
the
Mortgage, or the exercise of any right thereunder, render either
the
Mortgage
Note or the Mortgage unenforceable, in whole or in part, or
subject to
any right of rescission, set-off, counterclaim or defense,
including
the defense of usury and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto.
(v) All buildings upon the Mortgaged Property are insured by an
insurer
generally acceptable to prudent mortgage lending institutions
against
loss by fire, hazards of extended coverage and such other
hazards
as are
customary in the area the Mortgaged Property is located,
pursuant
to
insurance policies conforming to the requirements of Customary
Servicing
Procedures and this Agreement. All such insurance policies
contain a
standard mortgagee clause naming the originator of the Mortgage
Loan, its
successors and assigns as mortgagee and all premiums thereon
have been
paid. If the Mortgaged Property is in an area identified on a
flood
hazard map or flood insurance rate map issued by the Federal
Emergency
Management Agency as having special flood hazards (and such
flood
insurance has been made available), a flood insurance policy
meeting
the
requirements of the current guidelines of the Federal Insurance
Administration is in effect which policy conforms to the
requirements of
FNMA or
FHLMC. The Mortgage obligates the Mortgagor thereunder to
maintain
all such
insurance at the Mortgagor's cost and expense, and on the
Mortgagor's failure to do so, authorizes the holder of the Mortgage
to
maintain
such insurance at Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor.
(vi) Any and all requirements of any federal, state or local
law
including,
without limitation, usury, truth in lending, real estate
settlement
procedures, consumer credit protections, all applicable
predatory
and abusive lending laws, equal credit opportunity or
disclosure
laws
applicable to the origination and servicing of Mortgage Loan
have
been
complied with.
(vii) The Mortgage has not been satisfied, canceled, subordinated
or
rescinded,
in whole or in part (other than as to Principal Prepayments in
full which
may have been received prior to the Closing Date), and the
Mortgaged
Property has not been released from the lien of the Mortgage,
in
whole or
in part, nor has any instrument been executed that would effect
any such
satisfaction, cancellation, subordination, rescission or
release.
(viii) The Mortgage is a valid, existing and enforceable first
lien
on the
Mortgaged Property, including all improvements on the Mortgaged
Property
subject only to (A) the lien of current real property taxes and
assessments not yet due and payable, (B) covenants, conditions
and
restrictions, rights of way, easements and other matters of the
public
record as
of the date of recording being acceptable to mortgage lending
institutions generally and specifically referred to in the lender's
title
insurance
policy delivered to the originator of the Mortgage Loan and
which do
not adversely affect the Appraised Value of the Mortgaged
Property,
(C) if the Mortgaged Property consists of Co-op Shares, any
lien
for
amounts due to the cooperative housing corporation for unpaid
assessments or charges or any lien of any assignment of rents
or
maintenance expenses secured by the real property owned by the
cooperative
housing
corporation, and (D) other matters to which like properties are
commonly subject
which do not materially interfere with the benefits of
the
security intended to be provided by the Mortgage or the use,
enjoyment,
value or marketability of the related Mortgaged Property. Any
security
agreement, chattel mortgage or equivalent document related to
and
delivered
in connection with the Mortgage Loan establishes and creates a
valid,
existing and enforceable first lien and first priority security
interest
on the property described therein and the Depositor has the
full
right to
sell and assign the same to the Trustee.
(ix) The Mortgage Note and the related Mortgage are genuine and
each
is the
legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms except as enforceability
may be
limited by
(A) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the
enforcement
of the
rights of creditors and (B) general principles of equity,
whether
enforcement is sought in a proceeding in equity or at law.
(x) All parties to the Mortgage Note and the Mortgage had legal
capacity
to enter into the Mortgage Loan and to execute and deliver the
Mortgage
Note and the Mortgage, and the Mortgage Note and the Mortgage
have been
duly and properly executed by such parties.
(xi) The proceeds of the Mortgage Loan have been fully disbursed
to
or for the
account of the Mortgagor and there is no obligation for the
Mortgagee
to advance additional funds thereunder and any and all
requirements as to completion of any on-site or off-site
improvements and
as to
disbursements of any escrow funds therefor have been complied
with.
All costs,
fees and expenses incurred in making or closing the Mortgage
Loan and
the recording of the Mortgage have been paid, and the Mortgagor
is not
entitled to any refund of any amounts paid or due to the
Mortgagee
pursuant to the
Mortgage Note or Mortgage.
(xii) To the best of the Depositor's knowledge, all parties
which
have had
any interest in the Mortgage Loan, whether as mortgagee,
assignee,
pledgee or otherwise, are (or, during the period in which they
held and
disposed of such interest, were) in compliance with any and all
applicable
"doing business" and licensing requirements of the laws of the
state
wherein the Mortgaged Property is located.
(xiii)(A) the Mortgage Loan is covered by an ALTA lender's
title
insurance
policy, acceptable to FNMA or FHLMC, issued by a title insurer
acceptable
to FNMA or FHLMC and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring
(subject to
the
exceptions contained in (viii)(A) and (B) above) the Seller,
its
successors
and assigns as to the first priority lien of the Mortgage in
the
original principal amount of the Mortgage Loan, (B) a title search
has
been done
showing no lien (other than the exceptions contained in
(viii)(A)
and (B) above) on the related Mortgaged Property senior to the
lien of
the Mortgage or (C) in the case of any Mortgage Loan secured by
a
Mortgaged
Property located in a jurisdiction where such policies are
generally
not available, an opinion of counsel of the type customarily
rendered
in such jurisdiction in lieu of title insurance is instead
received.
For each Mortgage Loan covered by a title insurance policy (x)
the
Depositor is the sole insured of such lender's title insurance
policy,
and such
lender's title insurance policy is in full force and effect and
will be in
full force and effect upon the consummation of the transactions
contemplated by this Agreement and (y) no claims have been made
under such
lender's
title insurance policy, and the Depositor has not done, by act
or
omission,
anything which would impair the coverage of such lender's title
insurance
policy.
(xiv) There is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note and
no event
which,
with the passage of time or with notice and the expiration of
any
grace or
cure period, would constitute a default, breach, violation or
event of
acceleration, and the Seller has not waived any default,
breach,
violation
or event of acceleration.
(xv) As of the date of origination of the Mortgage Loan, there
had
been no
mechanics' or similar liens or claims filed for work, labor or
material
(and no rights are outstanding that under law could give rise
to
such lien)
affecting the relating Mortgaged Property which are or may be
liens
prior to, or equal or coordinate with, the lien of the related
Mortgage.
(xvi) All improvements which were considered in determining the
Appraised
Value of the related Mortgaged Property lay wholly within the
boundaries and building
restriction lines of the Mortgaged Property, and
no
improvements on adjoining properties encroach upon the
Mortgaged
Property.
(xvii) The Mortgage Loan was originated by a savings and loan
association, savings bank, commercial bank, credit union,
insurance
company,
or similar institution which is supervised and examined by a
federal or
state authority, or by a mortgagee approved by the Secretary of
Housing
and Urban Development pursuant to sections 203 and 211 of the
National
Housing Act.
(xviii) Principal payments on the Mortgage Loan commenced no
more
than sixty
days after the proceeds of the Mortgaged Loan were disbursed.
The
Mortgage Loans are 10 to 30-year fixed rate mortgage loans having
an
original
term to maturity of not more than 30 years, with interest
payable
in arrears
on the first day of the month. Each Mortgage Note requires a
monthly
payment which is sufficient to fully amortize the original
principal
balance over the original term thereof and to pay interest at
the
related Mortgage Interest Rate. The Mortgage Note does not
permit
negative
amortization.
(xix) There is no proceeding pending or, to the Depositor's
knowledge,
threatened for the total or partial condemnation of the
Mortgaged
Property. The Mortgaged Property is in good repair and is
undamaged
by waste, fire, earthquake or earth movement, windstorm, flood,
tornado or
other casualty, so as to affect adversely the value of the
Mortgaged
Property as security for the Mortgage Loan or the use for which
the
premises were intended.
(xx) The Mortgage and related Mortgage Note contain customary
and
enforceable provisions such as to render the rights and remedies of
the
holder
thereof adequate for the realization against the Mortgaged
Property
of the
benefits of the security provided thereby, including (A) in the
case of a
Mortgage designated as a deed of trust, by trustee's sale, and
(B)
otherwise by judicial foreclosure. To the best of the
Depositor's
knowledge,
following the date of origination of the Mortgage Loan, the
Mortgaged
Property has not been subject to any bankruptcy proceeding or
foreclosure proceeding and the Mortgagor has not filed for
protection
under
applicable bankruptcy laws. There is no homestead or other
exemption
or right
available to the Mortgagor or any other person which would
interfere
with the right to sell the Mortgaged Property at a trustee's
sale or
the right to foreclose the Mortgage.
(xxi) Other than any Borrowers Protection Plan(R) addendum to
the
Mortgage
Note of a BPP Mortgage Loan, the Mortgage Note and Mortgage are
on forms
acceptable to FNMA or FHLMC.
(xxii) The Mortgage Note is not and has not been secured by any
collateral
except the lien of the corresponding Mortgage on the Mortgaged
Property
and the security interest of any applicable security agreement
or
chattel
mortgage referred to in (viii) above.
(xxiii) Each appraisal of the related Mortgaged Property, is in
a
form
acceptable to FNMA or FHLMC and such appraisal complies with
the
requirements of FIRREA, and was made and signed, prior to the
approval of
the
Mortgage Loan application, by a Qualified Appraiser.
(xxiv) In the event the Mortgage constitutes a deed of trust, a
trustee,
duly qualified under applicable law to serve as such, has been
properly
designated and currently so serves, and no fees or expenses are
or will
become payable by the Trustee to the trustee under the deed of
trust,
except in connection with a trustee's sale after default by the
Mortgagor.
(xxv) No Mortgage Loan is a graduated payment mortgage loan, no
Mortgage
Loan has a shared appreciation or other contingent interest
feature,
and no more than 0.26%, 0.00%, 0.00%, 0.00% and 0.51% (by
Cut-off
Date
Principal Balance) of the Group 1, Group 2, Group 3, Group 4
and
Group 5
Mortgage Loans, respectively, are Buy-Down Mortgage Loans.
(xxvi) The Mortgagor has received all disclosure materials
required
by
applicable law with respect to the making of mortgage loans of the
same
type as
the Mortgage Loan and rescission materials required by
applicable
law if the
Mortgage Loan is a Refinance Mortgage Loan.
(xxvii) Each Primary Insurance Policy to which any Mortgage Loan
is
subject
will be issued by an insurer acceptable to FNMA or FHLMC, which
insures
that portion of the Mortgage Loan in excess of the portion of
the
Appraised
Value of the Mortgaged Property required by FNMA. All
provisions
of such
Primary Insurance Policy have been and are being complied with,
such
policy is in full force and effect, and all premiums due
thereunder
have been
paid. Any Mortgage subject to any such Primary Insurance Policy
obligates
the Mortgagor thereunder to maintain such insurance and to pay
all
premiums and charges in connection therewith at least until
Loan-to-Value Ratio of such Mortgage Loan is reduced to less than
80%. The
Mortgage
Interest Rate for the Mortgage Loan does not include any such
insurance
premium.
(xxviii) To the best of the Depositor's knowledge as of the date
of
origination of the Mortgage Loan, (A) the Mortgaged Property is
lawfully
occupied under
applicable law, (B) all inspections, licenses and
certificates required to be made or issued with respect to all
occupied
portions
of the Mortgaged Property and, with respect to the use and
occupancy
of the same, including but not limited to certificates of
occupancy,
have been made or obtained from the appropriate authorities and
(C) no
improvement located on or part of the Mortgaged Property is in
violation
of any zoning law or regulation.
(xxix) The
Assignment of Mortgage (except with respect to any
Mortgage
that has been recorded in the name of MERS or its designee) is
in
recordable
form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located.
(xxx) All payments required to be made prior to the Cut-off Date
for
such
Mortgage Loan under the terms of the Mortgage Note have been made
and
no
Mortgage Loan has been more than 30 days delinquent more than once
in
the twelve
month period immediately prior to the Cut-off Date.
(xxxi) With respect to each Mortgage Loan, the Depositor or
Servicer
is in
possession of a complete Mortgage File except for the documents
which have
been delivered to the Trustee or which have been submitted for
recording
and not yet returned.
(xxxii) Immediately prior to the transfer and assignment
contemplated herein, the Depositor was the sole owner and holder of
the
Mortgage Loans. The Mortgage Loans
were not assigned or pledged by the
Depositor
and the Depositor had good and marketable title thereto, and
the
Depositor
had full right to transfer and sell the Mortgage Loans to the
Trustee
free and clear of any encumbrance, participation interest,
lien,
equity,
pledge, claim or security interest and had full right and
authority
subject to no interest or participation in, or agreement with
any other
party to sell or otherwise transfer the Mortgage Loans.
(xxxiii) Any future advances made prior to the Cut-off Date
have
been
consolidated with the outstanding principal amount secured by
the
Mortgage,
and the secured principal amount, as consolidated, bears a
single
interest rate and single repayment term. The lien of the
Mortgage
securing
the consolidated principal amount is expressly insured as
having
first lien
priority by a title insurance policy, an endorsement to the
policy
insuring the mortgagee's consolidated interest or by other
title
evidence
acceptable to FNMA and FHLMC. The consolidated principal amount
does not
exceed the original principal amount of the Mortgage Loan.
(xxxiv) The Mortgage Loan was underwritten in accordance with
the
applicable
Underwriting Guidelines in effect at the time of origination
with
exceptions thereto exercised in a reasonable manner.
(xxxv) If the Mortgage Loan is secured by a long-term
residential
lease, (1)
the lessor under the lease holds a fee simple interest in the
land; (2)
the terms of such lease expressly permit the mortgaging of the
leasehold
estate, the assignment of the lease without the lessor's
consent
and the
acquisition by the holder of the Mortgage of the rights of the
lessee
upon foreclosure or assignment in lieu of foreclosure or
provide
the holder
of the Mortgage with substantially similar protections; (3) the
terms of
such lease do not (a) allow the termination thereof upon the
lessee's
default without the holder of the Mortgage being entitled to
receive
written notice of, and opportunity to cure, such default, (b)
allow the
termination of the lease in the event of damage or destruction
as long as
the Mortgage is in existence, (c) prohibit the holder of the
Mortgage
from being insured (or receiving proceeds of insurance) under
the
hazard
insurance policy or policies relating to the Mortgaged Property
or
(d) permit
any increase in the rent other than pre-established increases
set forth
in the lease; (4) the original term of such lease in not less
than 15
years; (5) the term of such lease does not terminate earlier
than
five years
after the maturity date of the Mortgage Note; and (6) the
Mortgaged
Property is located in a jurisdiction in which the use of
leasehold
estates in transferring ownership in residential properties is
a
widely
accepted practice.
(xxxvi) The Mortgaged Property is located in the state identified
in
the
Mortgage Loan Schedule and consists of a parcel of real property
with
a detached
single family residence erected thereon, or a two- to
four-family dwelling, or an individual condominium unit, or an
individual
unit in a
planned unit development, or, in the case of Mortgage Loans
secured by
Co-op Shares, leases or occupancy agreements; provided,
however,
that any condominium project or planned unit development
generally
conforms with the applicable Underwriting Guidelines regarding
such
dwellings, and no residence or dwelling is a mobile home or a
manufactured dwelling.
(xxxvii) The Depositor used no adverse selection procedures in
selecting
the Mortgage Loan for inclusion in the Trust Estate.
(xxxviii) Each Mortgage Loan is a "qualified mortgage" within
Section
860G(a)(3) of the Code.
(xxxix) With respect to each Mortgage where a lost note
affidavit
has been
delivered to the Trustee in place of the related Mortgage Note,
the
related Mortgage Note is no longer in existence.
(xl) No Mortgage Loan is a "high cost" loan as defined under
any
federal,
state or local law applicable to such Mortgage Loan at the time
of its
origination.
(xli) No Mortgage Loan (other than a Mortgage Loan that is a
New
Jersey
covered purchase loan originated on or after November 27, 2003
through
July 6, 2004) is a High Cost Loan or Covered Loan, as
applicable
(as such
terms are defined in S&P's LEVELS(R) Glossary which is now
Version
5.6 Revised, Appendix E) and no Mortgage Loan originated on or
after
October 1, 2002 through March 6, 2003 is governed by the
Georgia
Fair
Lending Act.
Notwithstanding the foregoing, no representations or warranties
are
made by the Depositor as to the
environmental condition of any Mortgaged
Property; the absence, presence or effect
of hazardous wastes or hazardous
substances on any Mortgaged Property; any
casualty resulting from the presence
or effect of hazardous wastes or hazardous
substances on, near or emanating from
any Mortgaged Property; the impact on
Certificateholders of any environmental
condition or presence of any hazardous
substance on or near any Mortgaged
Property; or the compliance of any
Mortgaged Property with any environmental
laws, nor is any agent, Person or entity
otherwise affiliated with the Depositor
authorized or able to make any such
representation, warranty or assumption of
liability relative to any Mortgaged
Property. In addition, no representations or
warranties are made by the Depositor with
respect to the absence or effect of
fraud in the origination of any Mortgage
Loan.
It is understood and agreed that the representations and
warranties
set forth in this Section 2.04 shall
survive delivery of the respective Mortgage
Files to the Trustee or the Custodian and
shall inure to the benefit of the
Trustee, notwithstanding any restrictive or
qualified endorsement or assignment.
Upon discovery by either the Depositor, the Servicer, the Trustee
or
the Custodian that any of the
representations and warranties set forth in this
Section 2.04 is not accurate (referred to
herein as a "breach") and that such
breach materially and adversely affects the
interests of the Certificateholders
in the related Mortgage Loan, the party
discovering such breach shall give
prompt written notice to the other parties
(any Custodian being so obligated
under a Custodial Agreement); provided that
any such breach that causes the
Mortgage Loan not to be a "qualified
mortgage" within the meaning of Section
860G(a)(3) of the Code shall be deemed to
materially and adversely affect the
interests of the Certificateholders. Within
90 days of its discovery or its
receipt of notice of any such breach, the
Depositor shall cure such breach in
all material respects or shall either (i)
repurchase the Mortgage Loan or any
property acquired in respect thereof from
the Trustee at a price equal to the
Repurchase Price or (ii) if within two
years of the Closing Date, substitute for
such Mortgage Loan in the manner described
in Section 2.02; provided that if the
breach would cause the Mortgage Loan to be
other than a "qualified mortgage" as
defined in Section 860G(a)(3) of the Code,
any such repurchase or substitution
must occur within 90 days from the date the
breach was discovered. In addition
to the foregoing. if a breach of the
representation set forth in clause (vi) or
(xli) of this Section 2.04 occurs as a
result of a violation of an applicable
predatory or abusive lending law, the
Depositor shall reimburse the Trust for
all costs or damages incurred by the Trust
as a result of the violation of such
law (such amount, the "Reimbursement
Amount"). The Repurchase Price of any
repurchase described in this paragraph, the
Substitution Adjustment Amount, if
any, and any Reimbursement Amount shall be
deposited in the Servicer Custodial
Account. It is understood and agreed that,
except with respect to the second
preceding sentence, the obligation of the
Depositor to repurchase or substitute
for any Mortgage Loan or Mortgaged Property
as to which such a breach has
occurred and is continuing shall constitute
the sole remedy respecting such
breach available to Certificateholders, or
to the Trustee on behalf of
Certificateholders, and such obligation
shall survive until termination of the
Trust hereunder.
Section 2.05 Designation of Interests in the REMICs. The
Depositor
hereby designates the Classes of Class A
Certificates (other than the Class
1-A-R, Class 1-A-MR, Class 1-A-LR, Class
X-PO and Class 30-IO Certificates) and
the Classes of Class X-B, Class 2-B and
Class 5-B Certificates and each
Component as "regular interests" and the
Class 1-A-R Certificate as the single
class of "residual interest" in the
Upper-Tier REMIC for the purposes of Code
Sections 860G(a)(1) and 860G(a)(2),
respectively. The Depositor hereby further
designates the Class 1-L Interest, Class
1-LS Interest, Class 1-LIO Interest,
Class 1-LPO Interest, Class 2-L Interest,
Class 2-LIO Interest, Class 2-LPO
Interest, Class 3-L Interest, Class 3-LS
Interest, Class 3-LIO Interest, Class
3-LPO Interest, Class 4-L Interest, Class
4-LS Interest, Class 4-LIO Interest,
Class 4-LPO Interest, Class 5-L Interest,
Class 5-LIO Interest and Class 5-LPO
Interest as classes of "regular interests"
and the Class 1-A-LR Certificate as
the single class of "residual interest" in
the Lower-Tier REMIC for the purposes
of Code Sections 860G(a)(1) and 860G(a)(2),
respectively. The Depositor hereby
further designates the Class 1-A-M1
Interest, Class 1-A-M4 Interest, Class
1-A-M10 Interest, Class 1-A-M13 Interest,
Class 1-A-M14 Interest, Class 1-A-MUR
Interest, Class 2-A-M1 Interest, Class
3-A-M1 Interest, Class 4-A-M1 Interest,
Class 5-A-M1 Interest, Class 1-X-MPO
Interest, Class 2-X-MPO Interest, Class
3-X-MPO Interest, Class15-MPO Interest,
Class 5-PO Interest, Class 1-30-MIO
Interest, Class 2-30-MIO Interest, Class
20-MIO Interest, Class 15-MIO Interest,
Class 5-MIO Interest, Class X-B-M1
Interest, Class X-B-M2 Interest, Class X-B-M3
Interest, Class X-B-M4 Interest, Class
X-B-M5 Interest, Class X-B-M6 Interest,
Class 2-B-M1 Interest, Class 2-B-M2 Class
2-B-M3 Interest, Class 2-B-M4
Interest, Class 2-B-M5 Interest, Class
2-B-M6 Interest, Class 5-B-M1 Interest,
Class 5-B-M2 Interest, Class 5-B-M3
Interest, Class 5-B-M4 Interest, Class
5-B-M5 Interest and Class 5-B-M6 Interest
as classes of "regular interests" and
the Class 1-A-MR Certificate as the single
class of "residual interest" in the
Middle-Tier REMIC for the purposes of Code
Sections 860G(a)(1) and 860G(a)(2),
respectively.
Section 2.06 Designation of Start-up Day. The Closing Date is
hereby
designated as the "start-up day" of each of
the Upper-Tier REMIC, Middle-Tier
REMIC and Lower-Tier REMIC within the
meaning of Section 860G(a)(9) of the Code.
Section 2.07 REMIC Certificate Maturity Date. Solely for purposes
of
satisfying Section 1.860G-1(a)(4)(iii) of
the Treasury Regulations, the "latest
possible maturity date" of the regular
interests in the Upper-Tier REMIC,
Middle-Tier REMIC and Lower-Tier REMIC is
January 25, 2035.
Section 2.08 Execution and Delivery of Certificates. The Trustee
(i)
acknowledges the issuance of and hereby
declares that it holds the
Uncertificated Lower-Tier Interests on
behalf of the Middle-Tier REMIC and the
Certificateholders and that it holds the
Uncertificated Middle-Tier Interests on
behalf of the Upper-Tier REMIC and the
Certificateholders and (ii) has executed
and delivered to or upon the order of the
Depositor, in exchange for the
Mortgage Loans, Uncertificated Lower-Tier
Interests and Uncertificated
Middle-Tier Interests, together with all
other assets included in the definition
of "Trust Estate," receipt of which is
hereby acknowledged, Certificates in
authorized denominations which, together
with the Uncertificated Middle-Tier
Interests and Uncertificated Lower-Tier
Interests, evidence ownership of the
entire Trust Estate.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans. For and on
behalf
of the Certificateholders, the Servicer
shall service and administer the
Mortgage Loans, all in accordance with the
terms of this Agreement, Customary
Servicing Procedures, applicable law and
the terms of the Mortgage Notes and
Mortgages. In connection with such
servicing and administration, the Servicer
shall have full power and authority, acting
alone and/or through Subservicers as
provided in Section 3.02, to do or cause to
be done any and all things that it
may deem necessary or desirable in
connection with such servicing and
administration including, but not limited
to, the power and authority, subject
to the terms hereof, (a) to execute and
deliver, on behalf of the
Certificateholders and the Trustee,
customary consents or waivers and other
instruments and documents, (b) to consent,
with respect to the Mortgage Loans it
services, to transfers of any Mortgaged
Property and assumptions of the Mortgage
Notes and related Mortgages (but only in
the manner provided in this Agreement),
(c) to collect any Insurance Proceeds and
other Liquidation Proceeds relating to
the Mortgage Loans it services, and (d) to
effectuate foreclosure or other
conversion of the ownership of the
Mortgaged Property securing any Mortgage Loan
it services. The Servicer shall represent
and protect the interests of the Trust
in the same manner as it protects its own
interests in mortgage loans in its own
portfolio in any claim, proceeding or
litigation regarding a Mortgage Loan and
shall not make or permit any modification,
waiver or amendment of any term of
any Mortgage Loan, except as provided
pursuant to Section 3.21. Without limiting
the generality of the foregoing, the
Servicer, in its own name or in the name of
any Subservicer or the Depositor and the
Trustee, is hereby authorized and
empowered by the Depositor and the Trustee,
when the Servicer or any
Subservicer, as the case may be, believes
it appropriate in its reasonable
judgment, to execute and deliver, on behalf
of the Trustee, the Depositor, the
Certificateholders or any of them, any and
all instruments of satisfaction or
cancellation, or of partial or full release
or discharge, and all other
comparable instruments, with respect to the
Mortgage Loans it services, and with
respect to the related Mortgaged Properties
held for the benefit of the
Certificateholders. The Servicer shall
prepare and deliver to the Depositor
and/or the Trustee such documents requiring
execution and delivery by either or
both of them as are necessary or
appropriate to enable the Servicer to service
and administer the Mortgage Loans it
services to the extent that the Servicer is
not permitted to execute and deliver such
documents pursuant to the preceding
sentence. Upon receipt of such documents,
the Depositor and/or the Trustee, upon
the direction of the Servicer, shall
promptly execute such documents and deliver
them to the Servicer.
In accordance with the standards of the preceding paragraph,
the
Servicer shall advance or cause to be
advanced funds as necessary for the
purpose of effecting the payment of taxes
and assessments on the Mortgaged
Properties relating to the Mortgage Loans
it services, which Servicing Advances
shall be reimbursable in the first instance
from related collections from the
Mortgagors pursuant to Section 3.09, and
further as provided in Section 3.11.
The costs incurred by the Servicer, if any,
in effecting the timely payments of
taxes and assessments on the Mortgaged
Properties and related insurance premiums
shall not, for the purpose of calculating
monthly distributions to the
Certificateholders, be added to the Stated
Principal Balances of the related
Mortgage Loans, notwithstanding that the
terms of such Mortgage Loans so permit.
The relationship of the Servicer (and of any successor to the
Servicer as servicer under this Agreement)
to the Trustee under this Agreement
is intended by the parties to be that of an
independent contractor and not that
of a joint venturer, partner or agent.
Section 3.02 Subservicing; Enforcement of the Obligations of
Servicer. (a) The Servicer may arrange for
the subservicing of any Mortgage Loan
it services by a Subservicer pursuant to a
Subservicing Agreement; provided,
however, that such subservicing arrangement
and the terms of the related
Subservicing Agreement must provide for the
servicing of such Mortgage Loan in a
manner consistent with the servicing
arrangements contemplated hereunder.
Notwithstanding the provisions of any
Subservicing Agreement, any of the
provisions of this Agreement relating to
agreements or arrangements between the
Servicer and a Subservicer or reference to
actions taken through a Subservicer
or otherwise, the Servicer shall remain
obligated and liable to the Depositor,
the Trustee and the Certificateholders for
the servicing and administration of
the Mortgage Loans it services in
accordance with the provisions of this
Agreement without diminution of such
obligation or liability by virtue of such
Subservicing Agreements or arrangements or
by virtue of indemnification from the
Subservicer and to the same extent and
under the same terms and conditions as if
the Servicer alone were servicing and
administering those Mortgage Loans. All
actions of each Subservicer performed
pursuant to the related Subservicing
Agreement shall be performed as agent of
the Servicer with the same force and
effect as if performed directly by the
Servicer.
(b) For purposes of this Agreement, the Servicer shall be deemed
to
have received any collections, recoveries
or payments with respect to the
Mortgage Loans it services that are
received by a Subservicer regardless of
whether such payments are remitted by the
Subservicer to the Servicer.
(c) As part of its servicing activities hereunder, the Servicer,
for
the benefit of the Trustee and the
Certificateholders, shall use its best
reasonable efforts to enforce the
obligations of each Subservicer engaged by the
Servicer under the related Subservicing
Agreement, to the extent that the
non-performance of any such obligation
would have a material and adverse effect
on a Mortgage Loan. Such enforcement,
including, without limitation, the legal
prosecution of claims, termination of
Subservicing Agreements and the pursuit of
other appropriate remedies, shall be in
such form and carried out to such an
extent and at such time as the Servicer, in
its good faith business judgment,
would require were it the owner of the
related Mortgage Loans. The Servicer
shall pay the costs of such enforcement at
its own expense, and shall be
reimbursed therefor only (i) from a general
recovery resulting from such
enforcement to the extent, if any, that
such recovery exceeds all amounts due in
respect of the related Mortgage Loan or
(ii) from a specific recovery of costs,
expenses or attorneys fees against the
party against whom such enforcement is
directed.
(d) Any Subservicing Agreement entered into by the Servicer
shall
provide that it may be assumed or
terminated by the Trustee, if the Trustee has
assumed the duties of the Servicer, or any
successor Servicer, at the Trustee's
or successor Servicer's option, as
applicable, without cost or obligation to the
assuming or terminating party or the Trust
Estate, upon the assumption by such
party of the obligations of the Servicer
pursuant to Section 8.05.
Section 3.03 Fidelity Bond; Errors and Omissions Insurance. The
Servicer shall maintain, at its own
expense, a blanket fidelity bond and an
errors and omissions insurance policy, with
broad coverage on all officers,
employees or other persons acting in any
capacity requiring such persons to
handle funds, money, documents or papers
relating to the Mortgage Loans it
services. These policies must insure the
Servicer against losses resulting from
dishonest or fraudulent acts committed by
the Servicer's personnel, any
employees of outside firms that provide
data processing services for the
Servicer, and temporary contract employees
or student interns. Such fidelity
bond shall also protect and insure the
Servicer against losses in connection
with the release or satisfaction of a
Mortgage Loan without having obtained
payment in full of the indebtedness secured
thereby. No provision of this
Section 3.03 requiring such fidelity bond
and errors and omissions insurance
shall diminish or relieve the Servicer from
its duties and obligations as set
forth in this Agreement. The minimum
coverage under any such bond and insurance
policy shall be at least equal to the
corresponding amounts required by FNMA in
the FNMA Servicing Guide or by FHLMC in the
FHLMC Sellers' & Servicers' Guide,
as amended or restated from time to time,
or in an amount as may be permitted to
the Servicer by express waiver of FNMA or
FHLMC.
Section 3.04 Access to Certain Documentation. The Servicer
shall
provide to the OTS and the FDIC and to
comparable regulatory authorities
supervising Holders of Subordinate
Certificates and the examiners and
supervisory agents of the OTS, the FDIC and
such other authorities, access to
the documentation required by applicable
regulations of the OTS and the FDIC
with respect to the Mortgage Loans. Such
access shall be afforded without
charge, but only upon reasonable and prior
written request and during normal
business hours at the offices designated by
the Servicer. Nothing in this
Section 3.04 shall limit the obligation of
the Servicer to observe any
applicable law and the failure of the
Servicer to provide access as provided in
this Section 3.04 as a result of such
obligation shall not constitute a breach
of this Section 3.04.
Section 3.05 Maintenance of Primary Insurance Policy; Claims;
Collections of BPP Mortgage Loan Payments.
With respect to each Mortgage Loan
with a Loan-to-Value Ratio in excess of 80%
or such other Loan-to-Value Ratio as
may be required by law, the Servicer shall,
without any cost to the Trust
Estate, maintain or cause the Mortgagor to
maintain in full force and effect a
Primary Insurance Policy insuring that
portion of the Mortgage Loan in excess of
a percentage in conformity with FNMA
requirements. The Servicer shall pay or
shall cause the Mortgagor to pay the
premium thereon on a timely basis, at least
until the Loan-to-Value Ratio of such
Mortgage Loan is reduced to 80% or such
other Loan-to-Value Ratio as may be
required by law. If such Primary Insurance
Policy is terminated, the Servicer shall
obtain from another insurer a
comparable replacement policy, with a total
coverage equal to the remaining
coverage of such terminated Primary
Insurance Policy. If the insurer shall cease
to be an insurer acceptable to FNMA or
FHLMC, the Servicer shall notify the
Trustee in writing, it being understood
that the Servicer shall not have any
responsibility or liability for any failure
to recover under the Primary
Insurance Policy for such reason. If the
Servicer determines that recoveries
under the Primary Insurance Policy are
jeopardized by the financial condition of
the insurer, the Servicer shall obtain from
another insurer which meets the
requirements of this Section 3.05 a
replacement insurance policy. The Servicer
shall not take any action that would result
in noncoverage under any applicable
Primary Insurance Policy of any loss that,
but for the actions of the Servicer,
would have been covered thereunder. In
connection with any assumption or
substitution agreement entered into or to
be entered into pursuant to Section
3.13, the Servicer shall promptly notify
the insurer under the related Primary
Insurance Policy, if any, of such
assumption or substitution of liability in
accordance with the terms of such Primary
Insurance Policy and shall take all
actions which may be required by such
insurer as a condition to the continuation
of coverage under such Primary Insurance
Policy. If such Primary Insurance
Policy is terminated as a result of such
assumption or substitution of
liability, the Servicer shall obtain a
replacement Primary Insurance Policy as
provided above.
In connection with its activities as servicer, the Servicer
agrees
to prepare and present, on behalf of
itself, the Trustee and the
Certificateholders, claims to the insurer
under any Primary Insurance Policy in
a timely fashion in accordance with the
terms of such Primary Insurance Policy
and, in this regard, to take such action as
shall be necessary to permit
recovery under any Primary Insurance Policy
respecting a defaulted Mortgage
Loan. Pursuant to Section 3.09(a), any
amounts collected by the Servicer under
any Primary Insurance Policy shall be
deposited in the related Escrow Account,
subject to withdrawal pursuant to Section
3.09(b).
The
Servicer will comply with all provisions of applicable state
and
federal law relating to the cancellation
of, or collection of premiums with
respect to, Primary Mortgage Insurance,
including, but not limited to, the
provisions of the Homeowners Protection Act
of 1998, and all regulations
promulgated thereunder, as amended from
time to time.
The Servicer shall take all actions necessary to collect, on
behalf
of the Trust, any BPP Mortgage Loan
Payments required to be made to the Trust
pursuant to the Mortgage Loan Purchase
Agreement.
Section 3.06 Rights of the Depositor and the Trustee in Respect
of
the Servicer. The Depositor may, but is not
obligated to, enforce the
obligations of the Servicer hereunder and
may, but is not obligated to, perform,
or cause a designee to perform, any
defaulted obligation of the Servicer
hereunder and in connection with any such
defaulted obligation to exercise the
related rights of the Servicer hereunder;
provided that the Servicer shall not
be relieved of any of its obligations
hereunder by virtue of such performance by
the Depositor or its designee. Neither the
Trustee nor the Depositor shall have
any responsibility or liability for any
action or failure to act by the Servicer
nor shall the Trustee or the Depositor be
obligated to supervise the performance
of the Servicer hereunder or otherwise.
Any Subservicing Agreement that may be entered into and any
transactions or services relating to the
Mortgage Loans involving a Subservicer
in its capacity as such shall be deemed to
be between the Subservicer and the
Servicer alone, and the Trustee and
Certificateholders shall not be deemed
parties thereto and shall have no claims,
rights, obligations, duties or
liabilities with respect to the Subservicer
except as set forth in Section 3.07.
The Servicer shall be solely liable for all
fees owed by it to any Subservicer,
irrespective of whether the Servicer's
compensation pursuant to this Agreement
is sufficient to pay such fees.
Section 3.07
Trustee to Act as Servicer. If the Servicer shall for
any reason no longer be the Servicer
hereunder (including by reason of an Event
of Default), the Trustee shall within 90
days of such time, assume, if it so
elects, or shall appoint a successor
Servicer to assume, all of the rights and
obligations of the Servicer hereunder
arising thereafter (except that the
Trustee shall not be (a) liable for losses
of the Servicer pursuant to Section
3.12 or any acts or omissions of the
predecessor Servicer hereunder, (b)
obligated to make Advances if it is
prohibited from doing so by applicable law
or (c) deemed to have made any
representations and warranties of the Servicer
hereunder). Any such assumption shall be
subject to Sections 7.02 and 8.05. If
the Servicer shall for any reason no longer
be the Servicer (including by reason
of any Event of Default), the Trustee or
the successor Servicer may elect to
succeed to any rights and obligations of
the Servicer under each Subservicing
Agreement or may terminate each
Subservicing Agreement. If it has elected to
assume the Subservicing Agreement, the
Trustee or the successor Servicer shall
be deemed to have assumed all of the
Servicer's interest therein and to have
replaced the Servicer as a party to any
Subservicing Agreement entered into by
the Servicer as contemplated by Section
3.02 to the same extent as if the
Subservicing Agreement had been assigned to
the assuming party except that the
Servicer shall not be relieved of any
liability or obligations under any such
Subservicing Agreement.
The Servicer that is no longer the Servicer hereunder shall,
upon
request of the Trustee, but at the expense
of such predecessor Servicer, deliver
to the assuming party all documents and
records relating to each Subservicing
Agreement or substitute servicing agreement
and the Mortgage Loans then being
serviced thereunder and an accounting of
amounts collected or held by it and
otherwise use its best efforts to effect
the orderly and efficient transfer of
such substitute Subservicing Agreement to
the assuming party. The Trustee shall
be entitled to be reimbursed from the
predecessor Servicer (or the Trust if the
predecessor Servicer is unable to fulfill
its obligations hereunder) for all
Servicing Transfer Costs.
Section 3.08 Collection of Mortgage Loan Payments; Servicer
Custodial Account; and Certificate Account.
(a) Continuously from the date
hereof until the principal and interest on
all Mortgage Loans are paid in full,
the Servicer will proceed diligently, in
accordance with this Agreement, to
collect all payments due under each of the
Mortgage Loans it services when the
same shall become due and payable. Further,
the Servicer will in accordance with
all applicable law and Customary Servicing
Procedures ascertain and estimate
taxes, assessments, fire and hazard
insurance premiums, mortgage insurance
premiums and all other charges with respect
to the Mortgage Loans it services
that, as provided in any Mortgage, will
become due and payable to the end that
the installments payable by the Mortgagors
will be sufficient to pay such
charges as and when they become due and
payable. Consistent with the foregoing,
the Servicer may in its discretion (i)
waive any late payment charge or any
prepayment charge or penalty interest in
connection with the prepayment of a
Mortgage Loan it services and (ii) extend
the due dates for payments due on a
Mortgage Note for a period not greater than
120 days; provided, however, that
the Servicer cannot extend the maturity of
any such Mortgage Loan past the date
on which the final payment is due on the
latest maturing Mortgage Loan as of the
Cut-off Date. In the event of any such
arrangement, the Servicer shall make
Periodic Advances on the related Mortgage
Loan in accordance with the provisions
of Section 3.20 during the scheduled period
in accordance with the amortization
schedule of such Mortgage Loan without
modification thereof by reason of such
arrangements. The Servicer shall not be
required to institute or join in
litigation with respect to collection of
any payment (whether under a Mortgage,
Mortgage Note or otherwise or against any
public or governmental authority with
respect to a taking or condemnation) if it
reasonably believes that enforcing
the provision of the Mortgage or other
instrument pursuant to which such payment
is required is prohibited by applicable
law.
(b) The Servicer shall establish and maintain the Servicer
Custodial
Account. The Servicer shall deposit or
cause to be deposited into the Servicer
Custodial Account, all on a daily basis
within one Business Day of receipt,
except as otherwise specifically provided
herein, the following payments and
collections remitted by Subservicers or
received by the Servicer in respect of
the Mortgage Loans subsequent to the
Cut-off Date (other than in respect of
principal and interest due on the Mortgage
Loans on or before the Cut-off Date)
and the following amounts required to be
deposited hereunder with respect to the
Mortgage Loans it services:
(i) all
payments on account of principal of the Mortgage Loans,
including
Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans,
net
of the
Servicing Fee;
(iii) (A) all Insurance Proceeds and Liquidation Proceeds,
other
than
Insurance Proceeds to be (1) applied to the restoration or repair
of
the
Mortgaged Property, (2) released to the Mortgagor in accordance
with
Customary
Servicing Procedures or (3) required to be deposited to an
Escrow
Account pursuant to Section 3.09(a), and other than any Excess
Proceeds
and (B) any Insurance Proceeds released from an Escrow Account
pursuant
to Section 3.09(b)(iv);
(iv) any amount required to be deposited by the Servicer pursuant
to
Section
3.08(d) in connection with any losses on Permitted Investments
with
respect to the Servicer Custodial Account;
(v) any amounts required to be deposited by the Servicer pursuant
to
Section
3.14;
(vi) all Repurchase Prices, all Substitution Adjustment Amounts
and
all
Reimbursement Amounts, to the extent received by the Servicer;
(vii) Periodic Advances made by the Servicer pursuant to
Section
3.20 and
any Compensating Interest;
(viii) any Recoveries;
(ix) any Buy-Down Funds required to be deposited pursuant to
Section
3.23;
and
(x) any other amounts required to be deposited hereunder.
The foregoing requirements for deposits to the Servicer
Custodial
Account by the Servicer shall be exclusive,
it being understood and agreed that,
without limiting the generality of the
foregoing, Ancillary Income need not be
deposited by the Servicer. If the Servicer
shall deposit in the Servicer
Custodial Account any amount not required
to be deposited, it may at any time
withdraw or direct the institution
maintaining the Servicer Custodial Account to
withdraw such amount from the Servicer
Custodial Account, any provision herein
to the contrary notwithstanding. The
Servicer Custodial Account may contain
funds that belong to one or more trust
funds created for mortgage pass-through
certificates of other series and may
contain other funds respecting payments on
mortgage loans belonging to the Servicer or
serviced by the Servicer on behalf
of others; provided, however, that such
commingling of funds shall not be
permitted at any time during which Fitch's
senior long-term unsecured debt
rating of Bank of America is below "A."
Notwithstanding such commingling of
funds, the Servicer shall keep records that
accurately reflect the funds on
deposit in the Servicer Custodial Account
that have been identified by it as
being attributable to the Mortgage Loans it
services. The Servicer shall
maintain adequate records with respect to
all withdrawals made pursuant to this
Section 3.08. All funds required to be
deposited in the Servicer Custodial
Account shall be held in trust for the
Certificateholders until withdrawn in
accordance with Section 3.11.
(c) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Certificate
Account, which shall be deemed to consist of
seven sub-accounts. The Trustee shall,
promptly upon receipt, deposit in the
Certificate Account and retain therein the
following:
(i) the aggregate amount remitted by the Servicer to the
Trustee
pursuant
to Section 3.11(a)(viii);
(ii) any amount paid by the Trustee pursuant to Section 3.08(d)
in
connection with any losses
on Permitted Investments with respect to the
Certificate Account; and
(iii) any other amounts deposited hereunder which are required to
be
deposited
in the Certificate Account.
If the Servicer shall remit any amount not required to be
remitted,
it may at any time direct the Trustee to
withdraw such amount from the
Certificate Account, any provision herein
to the contrary notwithstanding. Such
direction may be accomplished by delivering
an Officer's Certificate to the
Trustee which describes the amounts
deposited in error in the Certificate
Account. All funds required to be deposited
in the Certificate Account shall be
held by the Trustee in trust for the
Certificateholders until disbursed in
accordance with this Agreement or withdrawn
in accordance with Section 3.11. In
no event shall the Trustee incur liability
for withdrawals from the Certificate
Account at the direction of the
Servicer.
(d) Each institution at which the Servicer Custodial Account or
the
Certificate Account is maintained shall
invest the funds therein as directed in
writing by the Servicer, in the case of the
Servicer Custodial Account, or the
Trustee, in the case of the Certificate
Account, in Permitted Investments, which
shall mature not later than (i) in the case
of the Servicer Custodial Account,
the Business Day next preceding the related
Remittance Date (except that if such
Permitted Investment is an obligation of
the institution that maintains such
account, then such Permitted Investment
shall mature not later than such
Remittance Date) and (ii) in the case of
the Certificate Account, the Business
Day next preceding the Distribution Date
(except that if such Permitted
Investment is an obligation of the
institution that maintains such account, then
such Permitted Investment shall mature not
later than such Distribution Date)
and, in each case, shall not be sold or
disposed of prior to its maturity. All
such Permitted Investments shall be made in
the name of the Trustee, for the
benefit of the Certificateholders. All
Servicer Custodial Account Reinvestment
Income shall be for the benefit of the
Servicer as part of its Servicing
Compensation and shall be retained by it
monthly as provided herein. All income
or gain (net of any losses) realized from
any such investment of funds on
deposit in the Certificate Account shall be
for the benefit of the Trustee as
additional compensation and shall be
retained by it monthly as provided herein.
The amount of any losses realized in the
Servicer Custodial Account or the
Certificate Account incurred in any such
account in respect of any such
investments shall promptly be deposited by
the Servicer in the Servicer
Custodial Account or by the Trustee in the
Certificate Account, as applicable.
(e) The Servicer shall give notice to the Trustee of any
proposed
change of the location of the Servicer
Custodial Account maintained by the
Servicer not later than 30 days and not
more than 45 days prior to any change
thereof. The Trustee shall give notice to
the Servicer, each Rating Agency and
the Depositor of any proposed change of the
location of the Certificate Account
not later than 30 days after and not more
than 45 days prior to any change
thereof. The creation of the Servicer
Custodial Account shall be evidenced by a
certification substantially in the form of
Exhibit F hereto. A copy of such
certification shall be furnished to the
Trustee.
(f) The Trustee shall designate each of the Middle-Tier
Certificate
Sub-Account and the Upper-Tier Certificate
Sub-Account as a sub-account of the
Certificate Account. On each Distribution
Date (other than the Final
Distribution Date, if such Final
Distribution Date is in connection with a
purchase of the assets of the Trust Estate
by the Depositor), the Trustee shall,
from funds available on deposit in the
Certificate Account, be deemed to deposit
into the Middle-Tier Certificate
Sub-Account, the Lower-Tier Distribution
Amount. The Trustee shall then immediately,
from funds available in the
Middle-Tier Certificate Sub-Account, be
deemed to deposit into the Upper-Tier
Certificate Sub-Account, the Middle-Tier
Distribution Amount.
Section 3.09 Collection of Taxes, Assessments and Similar
Items;
Escrow Accounts. (a) To the extent required
by the related Mortgage Note and not
violative of current law, the Servicer
shall segregate and hold all funds
collected and received pursuant to each
Mortgage Loan which constitute Escrow
Payments in trust separate and apart from
any of its own funds and general
assets and for such purpose shall establish
and maintain one or more escrow
accounts (collectively, the "Escrow
Account"), titled "Bank of America, N.A., in
trust for registered holders of Banc of
America Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series
2004-11 and various Mortgagors." The
Escrow Account shall be established with a
commercial bank, a savings bank or a
savings and loan association that meets the
guidelines set forth by FNMA or
FHLMC as an eligible institution for escrow
accounts and which is a member of
the Automated Clearing House. In any case,
the Escrow Account shall be insured
by the FDIC to the fullest extent permitted
by law. The Servicer shall deposit
in the appropriate Escrow Account on a
daily basis, and retain therein: (i) all
Escrow Payments collected on account of the
Mortgage Loans, (ii) all amounts
representing proceeds of any hazard
insurance policy which are to be applied to
the restoration or repair of any related
Mortgaged Property and (iii) all
amounts representing proceeds of any
Primary Insurance Policy. Nothing herein
shall require the Servicer to compel a
Mortgagor to establish an Escrow Account
in violation of applicable law.
(b) Withdrawals of amounts so collected from the Escrow Accounts
may
be made by the Servicer only (i) to effect
timely payment of taxes, assessments,
mortgage insurance premiums, fire and
hazard insurance premiums, condominium or
PUD association dues, or comparable items
constituting Escrow Payments for the
related Mortgage, (ii) to reimburse the
Servicer out of related Escrow Payments
made with respect to a Mortgage Loan for
any Servicing Advance made by the
Servicer pursuant to Section 3.09(c) with
respect to such Mortgage Loan, (iii)
to refund to any Mortgagor any sums
determined to be overages, (iv) for transfer
to the Servicer Custodial Account upon
default of a Mortgagor or in accordance
with the terms of the related Mortgage Loan
and if permitted by applicable law,
(v) for application to restore or repair
the Mortgaged Property, (vi) to pay to
the Mortgagor, to the extent required by
law, any interest paid on the funds
deposited in the Escrow Account, (vii) to
pay to itself any interest earned on
funds deposited in the Escrow Account (and
not required to be paid to the
Mortgagor), (viii) to the extent permitted
under the terms of the related
Mortgage Note and applicable law, to pay
late fees with respect to any Monthly
Payment which is received after the
applicable grace period, (ix) to withdraw
suspense payments that are deposited into
the Escrow Account, (x) to withdraw
any amounts inadvertently deposited in the
Escrow Account or (xi) to clear and
terminate the Escrow Account upon the
termination of this Agreement in
accordance with Section 10.01. Any Escrow
Account shall not be a part of the
Trust Estate.
(c) With respect to each Mortgage Loan, the Servicer shall
maintain
accurate records reflecting the status of
taxes, assessments and other charges
which are or may become a lien upon the
Mortgaged Property and the status of
Primary Insurance Policy premiums and fire
and hazard insurance coverage. The
Servicer shall obtain, from time to time,
all bills for the payment of such
charges (including renewal premiums) and
shall effect payment thereof prior to
the applicable penalty or termination date
and at a time appropriate for
securing maximum discounts allowable,
employing for such purpose deposits of the
Mortgagor in the Escrow Account, if any,
which shall have been estimated and
accumulated by the Servicer in amounts
sufficient for such purposes, as allowed
under the terms of the Mortgage. To the
extent that a Mortgage does not provide
for Escrow Payments, the Servicer shall
determine that any such payments are
made by the Mortgagor. The Servicer assumes
full responsibility for the timely
payment of all such bills and shall effect
timely payments of all such bills
irrespective of each Mortgagor's faithful
performance in the payment of same or
the making of the Escrow Payments. The
Servicer shall advance any such payments
that are not timely paid, but the Servicer
shall be required so to advance only
to the extent that such Servicing Advances,
in the good faith judgment of the
Servicer, will be recoverable by the
Servicer out of Insurance Proceeds,
Liquidation Proceeds or otherwise.
Section 3.10 Access to Certain Documentation and Information
Regarding the Mortgage Loans. The Servicer
shall afford the Trustee reasonable
access to all records and documentation
regarding the Mortgage Loans and all
accounts, insurance information and other
matters relating to this Agreement,
such access being afforded without charge,
but only upon reasonable request and
during normal business hours at the office
designated by the Servicer.
Upon reasonable advance notice in writing, the Servicer will
provide
to each Certificateholder which is a
savings and loan association, bank or
insurance company certain reports and
reasonable access to information and
documentation regarding the Mortgage Loans
sufficient to permit such
Certificateholder to comply with applicable
regulations of the OTS or other
regulatory authorities with respect to
investment in the Certificates; provided
that the Servicer shall be entitled to be
reimbursed by each such
Certificateholder for actual expenses
incurred by the Servicer in providing such
reports and access.
Section 3.11 Permitted Withdrawals from the Servicer Custodial
Account and Certificate Account. (a) The
Servicer may from time to time make
withdrawals from the Servicer Custodial
Account, for the following purposes:
(i) to pay to the Servicer (to the extent not previously
retained),
the
Servicing Compensation to which it is entitled pursuant to
Section
3.17;
(ii) to reimburse the Servicer for unreimbursed Advances made by
it,
such right
of reimbursement pursuant to this clause (ii) being limited to
amounts
received on the Mortgage Loan(s) (including amounts received in
respect of
BPP Mortgage Loan Payments for such Mortgage Loan) in respect
of which
any such Advance was made;
(iii) to reimburse the Servicer for any Nonrecoverable Advance
previously
made, such right of reimbursement pursuant to this clause (iii)
being
limited to amounts received on the Mortgage Loans in the same
Loan
Group as
the Mortgage Loan(s) in respect of which such Nonrecoverable
Advance
was made;
(iv) to reimburse the Servicer for Insured Expenses from the
related
Insurance
Proceeds;
(v) to pay to the purchaser, with respect to each Mortgage Loan
or
REO
Property that has been purchased pursuant to Section 2.02 or 2.04,
all
amounts
received thereon after the date of such purchase;
(vi) to reimburse the Servicer or the Depositor for expenses
incurred
by any of them and reimbursable pursuant to Section 7.03;
(vii) to withdraw any amount deposited in the Servicer
Custodial
Account
and not required to be deposited therein;
(viii) on or prior to the Remittance Date, to withdraw an
amount
equal to
the related Pool Distribution Amount, the related Trustee Fee
and
any other
amounts due to the Trustee under this Agreement for such
Distribution Date, to the extent on deposit, and remit such amount
in
immediately available funds to the Trustee for deposit in the
Certificate
Account;
and
(ix) to clear and terminate the Servicer Custodial Account upon
termination of this Agreement pursuant to Section 10.01.
The Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for
the purpose of justifying any
withdrawal from the Servicer Custodial
Account pursuant to clauses (i), (ii),
(iv) and (v). The Servicer shall keep and
maintain such separate accounting for
each Loan Group. Prior to making any
withdrawal from the Servicer Custodial
Account pursuant to clause (iii), the
Servicer shall deliver to the Trustee an
Officer's Certificate of a Servicing
Officer indicating the amount of any
previous Advance determined by the Servicer
to be a Nonrecoverable Advance and
identifying the related Mortgage Loan(s)
and their respective portions of such
Nonrecoverable Advance.
(b) The Trustee shall be deemed to withdraw funds from the
applicable Certificate Account sub-accounts
to deposit the Lower-Tier
Distribution Amount into the Middle-Tier
Certificate Sub-Account and the
Middle-Tier Distribution Amount into the
Upper-Tier Certificate Sub-Account and
for distributions to Certificateholders in
the manner specified in this
Agreement. In addition, the Trustee may
from time to time make withdrawals from
the Certificate Account for the following
purposes:
(i) to pay to itself the Trustee Fee and any other amounts due
to
the
Trustee under this Agreement for the related Distribution Date;
(ii) to pay to itself as additional compensation earnings on or
investment
income with respect to funds in the Certificate Account;
(iii) to withdraw and return to the Servicer any amount deposited
in
the
Certificate Account and not required to be deposited therein;
and
(iv) to clear and terminate the Certificate Account upon
termination
of this
Agreement pursuant to Section 10.01.
(c) On each Distribution Date, funds on deposit in the
Certificate
Account and deemed to be deposited in the
Middle-Tier Certificate Sub-Account
shall be used to make payments on the Class
1-A-MR Certificate as provided in
Sections 5.01 and 5.02. On each
Distribution Date, funds on deposit in the
Upper-Tier Certificate Sub-Account shall be
used to make payments on the Regular
Certificates, the Class X-PO Certificates,
the Class 30-IO Certificates and the
Class 1-A-R Certificate as provided in
Sections 5.01 and 5.02. The Certificate
Account shall be cleared and terminated
upon termination of this Agreement
pursuant to Section 10.01.
Section 3.12 Maintenance of Hazard Insurance. The Servicer
shall
cause to be maintained for each Mortgage
Loan, fire and hazard insurance with
extended coverage customary in the area
where the Mortgaged Property is located
in an amount which is at least equal to the
lesser of (a) the full insurable
value of the Mortgaged Property or (b) the
greater of (i) the outstanding
principal balance owing on the Mortgage
Loan and (ii) an amount such that the
proceeds of such insurance shall be
sufficient to avoid the application to the
Mortgagor or loss payee of any coinsurance
clause under the policy. If the
Mortgaged Property is in an area identified
in the Federal Register by the
Federal Emergency Management Agency as
having special flood hazards (and such
flood insurance has been made available)
the Servicer will cause to be
maintained a flood insurance policy meeting
the requirements of the current
guidelines of the Federal Insurance
Administration and the requirements of FNMA
or FHLMC. The Servicer shall also maintain
on REO Property, fire and hazard
insurance with extended coverage in an
amount which is at least equal to the
maximum insurable value of the improvements
which are a part of such property,
liability insurance and, to the extent
required, flood insurance in an amount
required above. Any amounts collected by
the Servicer under any such policies
(other than amounts to be deposited in an
Escrow Account and applied to the
restoration or repair of the property
subject to the related Mortgage or
property acquired in liquidation of the
Mortgage Loan, or to be released to the
Mortgagor in accordance with Customary
Servicing Procedures) shall be deposited
in the Servicer Custodial Account, subject
to withdrawal pursuant to Section
3.11(a). It is understood and agreed that
no earthquake or other additional
insurance need be required by the Servicer
of any Mortgagor or maintained on REO
Property, other than pursuant to such
applicable laws and regulations as shall
at any time be in force and as shall
require such additional insurance. All
policies required hereunder shall be
endorsed with standard mortgagee clauses
with loss payable to the Servicer, and
shall provide for at least 30 days prior
written notice of any cancellation,
reduction in amount or material change in
coverage to the Servicer.
The hazard insurance policies for each Mortgage Loan secured by
a
unit in a condominium development or
planned unit development shall be
maintained with respect to such Mortgage
Loan and the related development in a
manner which is consistent with FNMA
requirements.
Notwithstanding the foregoing, the Servicer may maintain a
blanket
policy insuring against hazard losses on
all of the Mortgaged Properties
relating to the Mortgage Loans in lieu of
maintaining the required hazard
insurance policies for each Mortgage Loan
and may maintain a blanket policy
insuring against special flood hazards in
lieu of maintaining any required flood
insurance. Any such blanket policies shall
(A) be consistent with prudent
industry standards, (B) name the Servicer
as loss payee, (C) provide coverage in
an amount equal to the aggregate unpaid
principal balance on the related
Mortgage Loans without co-insurance, and
(D) otherwise comply with the
requirements of this Section 3.12. Any such
blanket policy may contain a
deductible clause; provided that if any
Mortgaged Property is not covered by a
separate policy otherwise complying with
this Section 3.12 and a loss occurs
with respect to such Mortgaged Property
which loss would have been covered by
such a policy, the Servicer shall deposit
in the Servicer Custodial Account the
difference, if any, between the amount that
would have been payable under a
separate policy complying with this Section
3.12 and the amount paid under such
blanket policy.
Section 3.13 Enforcement of Due-On-Sale Clauses; Assumption
Agreements. (a) Except as otherwise
provided in this Section 3.13, when any
Mortgaged Property subject to a Mortgage
has been conveyed by the Mortgagor, the
Servicer shall use reasonable efforts, to
the extent that it has actual
knowledge of such conveyance, to enforce
any due-on-sale clause contained in any
Mortgage Note or Mortgage, to the extent
permitted under applicable law and
governmental regulations, but only to the
extent that such enforcement will not
adversely affect or jeopardize coverage
under any Required Insurance Policy.
Notwithstanding the foregoing, the Servicer
is not required to exercise such
rights with respect to a Mortgage Loan if
the Person to whom the related
Mortgaged Property has been conveyed or is
proposed to be conveyed satisfies the
terms and conditions contained in the
Mortgage Note and Mortgage related thereto
and the consent of the mortgagee under such
Mortgage Note or Mortgage is not
otherwise required under such Mortgage Note
or Mortgage as a condition to such
transfer. If (i) the Servicer is prohibited
by law from enforcing any such
due-on-sale clause, (ii) coverage under any
Required Insurance Policy would be
adversely affected, (iii) the Mortgage Note
does not include a due-on-sale
clause or (iv) nonenforcement is otherwise
permitted hereunder, the Servicer is
authorized, subject to Section 3.13(b), to
take or enter into an assumption and
modification agreement from or with the
Person to whom such Mortgaged Property
has been or is about to be conveyed,
pursuant to which such Person becomes
liable under the Mortgage Note and, unless
prohibited by applicable state law,
the Mortgagor remains liable thereon;
provided that the Mortgage Loan shall
continue to be covered (if so covered
before the Servicer enters such agreement)
by the applicable Required Insurance
Policies. The Servicer, subject to Section
3.13(b), is also authorized with the prior
approval of the insurers under any
Required Insurance Policies to enter into a
substitution of liability agreement
with such Person, pursuant to which the
original Mortgagor is released from
liability and such Person is substituted as
Mortgagor and becomes liable under
the Mortgage Note. Notwithstanding the
foregoing, the Servicer shall not be
deemed to be in default under this Section
3.13 by reason of any transfer or
assumption which the Servicer reasonably
believes it is restricted by law from
preventing, for any reason whatsoever.
(b) Subject to the Servicer's duty to enforce any due-on-sale
clause
to the extent set forth in Section 3.13(a),
in any case in which a Mortgaged
Property has been conveyed to a Person by a
Mortgagor, and such Person is to
enter into an assumption agreement or
modification agreement or supplement to
the Mortgage Note or Mortgage that requires
the signature of the Trustee, or if
an instrument of release signed by the
Trustee is required releasing the
Mortgagor from liability on the Mortgage
Loan, the Servicer shall prepare and
deliver or cause to be prepared and
delivered to the Trustee for signature and
shall direct, in writing, the Trustee to
execute the assumption agreement with
the Person to whom the Mortgaged Property
is to be conveyed and such
modification agreement or supplement to the
Mortgage Note or Mortgage or other
instruments as are reasonable or necessary
to carry out the terms of the
Mortgage Note or Mortgage or otherwise to
comply with any applicable laws
regarding assumptions or the transfer of
the Mortgaged Property to such Person.
In no event shall the Trustee incur
liability for executing any document under
this Section 3.13 at the direction of the
Servicer. In connection with any such
assumption, no material term of the
Mortgage Note may be changed. In addition,
the substitute Mortgagor and the Mortgaged
Property must be acceptable to the
Servicer in accordance with its
underwriting standards as then in effect.
Together with each such substitution,
assumption or other agreement or
instrument delivered to the Trustee for
execution by it, the Servicer shall
deliver an Officer's Certificate signed by
a Servicing Officer stating that the
requirements of this subsection have been
met. The Servicer shall notify the
Trustee that any such substitution or
assumption agreement has been completed by
forwarding to the Trustee (or at the
direction of the Trustee, the Custodian)
the original of such substitution or
assumption agreement, which in the case of
the original shall be added to the related
Mortgage File and shall, for all
purposes, be considered a part of such
Mortgage File to the same extent as all
other documents and instruments
constituting a part thereof. Any fee collected
by the Servicer for entering into an
assumption or substitution of liability
agreement may be retained by the Servicer
as additional Servicing Compensation.
Notwithstanding the foregoing, to the
extent permissible under applicable law
and at the request of the Servicer, the
Trustee shall execute and deliver to the
Servicer any powers of attorney and other
documents prepared by the Servicer
that are reasonably necessary or
appropriate to enable the Servicer to execute
any assumption agreement or modification
agreement required to be executed by
the Trustee under this Section 3.13.
Section 3.14
Realization Upon Defaulted Mortgage Loans; REO
Property. (a) Subject to Section 3.21, the
Servicer shall use reasonable efforts
to foreclose upon or otherwise comparably
convert the ownership of Mortgaged
Properties securing such of the Mortgage
Loans as come into and continue in
default and as to which no satisfactory
arrangements can be made for collection
of delinquent payments. In connection with
such foreclosure or other conversion,
the Servicer shall follow Customary
Servicing Procedures and shall meet the
requirements of the insurer under any
Required Insurance Policy; provided,
however, that the Servicer may enter into a
special servicing agreement with an
unaffiliated Holder of 100% Percentage
Interest of a Class of Class X-B
Certificates, a Class of Class 2-B
Certificates, a Class of Class 5-B
Certificates or a holder of a class of
securities representing interests in the
Class X-B Certificates, Class 2-B
Certificates or Class 5-B Certificates alone
or together with other subordinated
mortgage pass-through certificates. Such
agreement shall be substantially in the
form attached hereto as Exhibit K or
subject to each Rating Agency's
acknowledgment that the ratings of the
Certificates in effect immediately prior to
the entering into such agreement
would not be qualified, downgraded or
withdrawn and the Certificates would not
be placed on credit review status (except
for possible upgrading) as a result of
such agreement. Any such agreement may
contain provisions whereby such holder
may instruct the Servicer to commence or
delay foreclosure proceedings with
respect to delinquent Mortgage Loans and
will contain provisions for the deposit
of cash by the holder that would be
available for distribution to
Certificateholders if Liquidation Proceeds
are less than they otherwise may have
been had the Servicer acted in accordance
with its normal procedures.
Notwithstanding the foregoing, the Servicer
shall not be required to expend its
own funds in connection with any
foreclosure or towards the restoration of any
Mortgaged Property unless it shall
determine (i) that such restoration and/or
foreclosure will increase the proceeds of
liquidation of the Mortgage Loan after
reimbursement to itself of such expenses
and (ii) that such expenses will be
recoverable to it through proceeds of the
liquidation of the Mortgage Loan
(respecting which it shall have priority
for purposes of withdrawals from the
Servicer Custodial Account). Any such
expenditures shall constitute Servicing
Advances for purposes of this
Agreement.
The decision of the Servicer to foreclose on a defaulted
Mortgage
Loan shall be subject to a determination by
the Servicer that the proceeds of
such foreclosure would exceed the costs and
expenses of bringing such a
proceeding.
With respect to any REO Property, the deed or certificate of
sale
shall be taken in the name of the Trustee
for the benefit of the
Certificateholders, or its nominee, on
behalf of the Certificateholders. The
Trustee's name shall be placed on the title
to such REO Property solely as the
Trustee hereunder and not in its individual
capacity. The Servicer shall ensure
that the title to such REO Property
references this Agreement and the Trustee's
capacity hereunder. Pursuant to its efforts
to sell such REO Property, the
Servicer shall either itself or through an
agent selected by the Servicer
manage, conserve, protect and operate such
REO Property in the same manner that
it manages, conserves, protects and
operates other foreclosed property for its
own account and in the same manner that
similar property in the same locality as
the REO Property is managed. Incident to
its conservation and protection of the
interests of the Certificateholders, the
Servicer may rent the same, or any part
thereof, as the Servicer deems to be in the
best interest of the
Certificateholders for the period prior to
the sale of such REO Property. The
Servicer shall prepare for and deliver to
the Trustee a statement with respect
to each REO Property that has been rented,
if any, showing the aggregate rental
income received and all expenses incurred
in connection with the management and
maintenance of such REO Property at such
times as is necessary to enable the
Trustee to comply with the reporting
requirements of the REMIC Provisions;
provided, however, that the Servicer shall
have no duty to rent any REO Property
on behalf of the Trust. The net monthly
rental income, if any, from such REO
Property shall be deposited in the Servicer
Custodial Account no later than the
close of business on each Determination
Date. The Servicer shall perform, with
respect to the Mortgage Loans, the tax
reporting and withholding required by
Sections 1445 and 6050J of the Code with
respect to foreclosures and
abandonments, the tax reporting required by
Section 6050H of the Code with
respect to the receipt of mortgage interest
from individuals and, if required by
Section 6050P of the Code with respect to
the cancellation of indebtedness by
certain financial entities, by preparing
such tax and information returns as may
be required, in the form required. The
Servicer shall deliver copies of such
reports to the Trustee.
If the Trust acquires any Mortgaged Property as described above
or
otherwise in connection with a default or a
default which is reasonably
foreseeable on a Mortgage Loan, the
Servicer shall dispose of such Mortgaged
Property prior to the end of the third
calendar year following the year of its
acquisition by the Trust (such period, the
"REO Disposition Period") unless (A)
the Trustee shall have been supplied by the
Servicer with an Opinion of Counsel
to the effect that the holding by the Trust
of such Mortgaged Property
subsequent to the REO Disposition Period
will not result in the imposition of
taxes on "prohibited transactions" (as
defined in Section 860F of the Code) on
any of the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC or
cause any REMIC created hereunder to fail
to qualify as a REMIC at any time that
any Certificates are outstanding, or (B)
the Trustee (at the Servicer's expense)
or the Servicer shall have applied for,
prior to the expiration of the REO
Disposition Period, an extension of the REO
Disposition Period in the manner
contemplated by Section 856(e)(3) of the
Code. If such an Opinion of Counsel is
provided or such an exemption is obtained,
the Trust may continue to hold such
Mortgaged Property (subject to any
conditions contained in such Opinion of
Counsel) for the applicable period.
Notwithstanding any other provision of this
Agreement, no Mortgaged Property acquired
by the Trust shall be rented (or
allowed to continue to be rented) or
otherwise used for the production of income
by or on behalf of the Trust in such a
manner or pursuant to any terms that
would (i) cause such Mortgaged Property to
fail to qualify as "foreclosure
property" within the meaning of Section
860G(a)(8) of the Code or (ii) subject
any REMIC created hereunder to the
imposition of any federal, state or local
income taxes on the income earned from such
Mortgaged Property under Section
860G(c) of the Code or otherwise, unless
the Servicer has agreed to indemnify
and hold harmless the Trust with respect to
the imposition of any such taxes.
The Servicer shall identify to the Trustee
any Mortgaged Property relating to a
Mortgage Loan held by the Trust for 30
months for which no plans to dispose of
such Mortgaged Property by the Servicer
have been made. After delivery of such
identification, the Servicer shall proceed
to dispose of any such Mortgaged
Property by holding a commercially
reasonable auction for such property.
The income earned from the management of any REO Properties, net
of
reimbursement to the Servicer for expenses
incurred (including any property or
other taxes) in connection with such
management and net of unreimbursed
Servicing Fees, Periodic Advances and
Servicing Advances, shall be applied to
the payment of principal of and interest on
the related defaulted Mortgage Loans
(solely for the purposes of allocating
principal and interest, interest shall be
treated as accruing as though such Mortgage
Loans were still current) and all
such income shall be deemed, for all
purposes in this Agreement, to be payments
on account of principal and interest on the
related Mortgage Notes and shall be
deposited into the Servicer Custodial
Account. To the extent the net income
received during any calendar month is in
excess of the amount attributable to
amortizing principal and accrued interest
at the related Mortgage Interest Rate
on the related Mortgage Loan for such
calendar month, such excess shall be
considered to be a partial prepayment of
principal of the related Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well as
any
income from an REO Property, will be
ap
