Exhibit 4.1
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| Execution Copy |
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XXXX XX XXXXXXX FUNDING CORPORATION,
as Depositor,
XXXXX FARGO BANK, N.A.,
as Master Servicer and Securities Administrator,
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated September 27, 2007
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Mortgage Pass-Through Certificates
Series 2007-8
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS 8
Section 1.01 Defined Terms...............................................................................8
Section 1.02 Interest Calculations......................................................................45
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES 45
Section 2.01 Conveyance of Mortgage Loans...............................................................45
Section 2.02 Acceptance by the Trustee or Custodian of the Mortgage Loans...............................49
Section 2.03 Representations, Warranties and Covenants of the Master Servicer...........................54
Section 2.04 Representations and Warranties of the Depositor as to the Mortgage Loans...................55
Section 2.05 Designation of Interests in the REMICs.....................................................56
Section 2.06 Designation of Start-up Day................................................................56
Section 2.07 REMIC Certificate Maturity Date............................................................56
Section 2.08 Execution and Delivery of Certificates.....................................................57
Section 2.09 Establishment of the Trust.................................................................57
Section 2.10 Purpose and Powers of the Trust............................................................57
ARTICLE III ADMINISTRATION AND MASTER SERVICING OF MORTGAGE LOANS 58
Section 3.01 Master Servicing of the Mortgage Loans.....................................................58
Section 3.02 Monitoring of Servicers....................................................................58
Section 3.03 Fidelity Bond; Errors and Omissions Insurance..............................................60
Section 3.04 Access to Certain Documentation............................................................61
Section 3.05 Maintenance of Primary Mortgage Insurance Policy; Claims...................................61
Section 3.06 Rights of the Depositor, the Securities Administrator and the Trustee in
Respect of the Master Servicer.............................................................61
Section 3.07 Trustee to Act as Master Servicer..........................................................62
Section 3.08 Servicer Custodial Accounts and Escrow Accounts............................................62
Section 3.09 Collection of Mortgage Loan Payments; Master Servicer Custodial
Accounts and Certificate Account...........................................................63
Section 3.10 Access to Certain Documentation and Information Regarding the Mortgage Loans...............65
Section 3.11 Permitted Withdrawals from the Certificate Account, the Master Servicer
Custodial Account and the Servicer Custodial Accounts......................................65
Section 3.12 Maintenance of Hazard Insurance and Other Insurance........................................67
Section 3.13 Presentment of Claims and Collection of Proceeds...........................................67
Section 3.14 Enforcement of Due-On-Sale Clauses; Assumption Agreements..................................68
Section 3.15 Realization Upon Defaulted Mortgage Loans; REO Property....................................68
Section 3.16 Trustee to Cooperate; Release of Mortgage Files............................................70
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Section 3.17 Documents, Records and Funds in Possession of the Master Servicer
to be Held for the Trustee.................................................................71
Section 3.18 Master Servicer Compensation...............................................................71
Section 3.19 Advances...................................................................................71
Section 3.20 Annual Statement as to Compliance..........................................................72
Section 3.21 Assessments of Compliance and Attestation Reports..........................................73
Section 3.22 Reports to the Commission..................................................................75
ARTICLE IV MASTER SERVICER'S CERTIFICATE 82
Section 4.01 Master Servicer's Certificate..............................................................82
ARTICLE V PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;REMIC ADMINISTRATION 82
Section 5.01 Distributions..............................................................................82
Section 5.02 Priorities of Distributions on the Certificates............................................83
Section 5.03 [Reserved].................................................................................92
Section 5.04 Allocation of Losses.......................................................................92
Section 5.05 Statements to Certificateholders...........................................................96
Section 5.06 REMIC Tax Returns and Reports to Certificateholders.......................................100
Section 5.07 Tax Matters Person........................................................................101
Section 5.08 Rights of the Tax Matters Person in Respect of the Securities Administrator...............101
Section 5.09 REMIC Related Covenants...................................................................102
Section 5.10 [Reserved]................................................................................103
Section 5.11 Master Servicer, Securities Administrator and Trustee Indemnification.....................103
ARTICLE VI THE CERTIFICATES 104
Section 6.01 The Certificates..........................................................................104
Section 6.02 Registration of Transfer and Exchange of Certificates.....................................104
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates........................................109
Section 6.04 Persons Deemed Owners.....................................................................109
ARTICLE VII THE DEPOSITOR AND THE MASTER SERVICER 110
Section 7.01 Respective Liabilities of the Depositor and the Master Servicer...........................110
Section 7.02 Merger or Consolidation of the Depositor or the Master Servicer...........................110
Section 7.03 Limitation on Liability of the Depositor, the Master Servicer and Others..................110
Section 7.04 Depositor and Master Servicer Not to Resign...............................................111
ARTICLE VIII DEFAULT 112
Section 8.01 Events of Default.........................................................................112
Section 8.02 Remedies of Trustee.......................................................................113
Section 8.03 Directions by Certificateholders and Duties of Trustee During Event of Default............114
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Section 8.04 Action upon Certain Failures of the Master Servicer and upon Event of Default.............114
Section 8.05 Trustee to Act; Appointment of Successor..................................................114
Section 8.06 Notification to Certificateholders........................................................116
ARTICLE IX THE TRUSTEE AND THE SECURITIES ADMINISTRATOR 116
Section 9.01 Duties of Trustee and Securities Administrator............................................116
Section 9.02 Certain Matters Affecting the Trustee and the Securities Administrator....................119
Section 9.03 Neither Trustee nor Securities Administrator Liable for Certificates or
Mortgage Loans............................................................................120
Section 9.04 Trustee and Securities Administrator May Own Certificates.................................121
Section 9.05 Eligibility Requirements for Trustee and the Securities Administrator.....................121
Section 9.06 Resignation and Removal of Trustee and the Securities Administrator.......................122
Section 9.07 Successor Trustee or Securities Administrator.............................................123
Section 9.08 Merger or Consolidation of Trustee or Securities Administrator............................124
Section 9.09 Appointment of Co-Trustee or Separate Trustee.............................................124
Section 9.10 Authenticating Agents.....................................................................125
Section 9.11 Securities Administrator's Fees and Expenses and Trustee's Fees and Expenses..............126
Section 9.12 Appointment of Custodian..................................................................127
Section 9.13 Paying Agents.............................................................................127
Section 9.14 Limitation of Liability...................................................................128
Section 9.15 Trustee or Securities Administrator May Enforce Claims Without
Possession of Certificates................................................................129
Section 9.16 Suits for Enforcement.....................................................................129
Section 9.17 Waiver of Bond Requirement................................................................129
Section 9.18 Waiver of Inventory, Accounting and Appraisal Requirement.................................129
ARTICLE X TERMINATION 129
Section 10.01 Termination upon Purchase or Liquidation of All Mortgage Loans............................129
Section 10.02 Additional Termination Requirements.......................................................131
ARTICLE XI MISCELLANEOUS PROVISIONS 132
Section 11.01 Amendment.................................................................................132
Section 11.02 Recordation of Agreement; Counterparts....................................................134
Section 11.03 Limitation on Rights of Certificateholders................................................134
Section 11.04 Governing Law.............................................................................135
Section 11.05 Notices...................................................................................135
Section 11.06 Severability of Provisions................................................................136
Section 11.07 Certificates Nonassessable and Fully Paid.................................................136
Section 11.08 Access to List of Certificateholders......................................................136
Section 11.09 Recharacterization........................................................................137
Section 11.10 Regulation AB Compliance; Intent of the Parties; Reasonableness...........................137
Section 11.11 Third Party Beneficiary...................................................................138
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Section 11.12 Insolvency................................................................................138
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EXHIBITS
Exhibit A-1AR Form of Face of Class 1-A-R Certificate
Exhibit A-1A1 Form of Face of Class 1-A-1 Certificate
Exhibit A-1A2 Form of Face of Class 1-A-2 Certificate
Exhibit A-2A1 Form of Face of Class 2-A-1 Certificate
Exhibit A-2A2 Form of Face of Class 2-A-2 Certificate
Exhibit A-2A3 Form of Face of Class 2-A-3 Certificate
Exhibit A-3A1 Form of Face of Class 3-A-1 Certificate
Exhibit A-3A2 Form of Face of Class 3-A-2 Certificate
Exhibit A-4A1 Form of Face of Class 4-A-1 Certificate
Exhibit A-4A2 Form of Face of Class 4-A-2 Certificate
Exhibit A-4A3 Form of Face of Class 4-A-3 Certificate
Exhibit A-4IO Form of Face of Class 4-IO Certificate
Exhibit A-4PO Form of Face of Class 4-PO Certificate
Exhibit A-XIO Form of Face of Class X-IO Certificate
Exhibit A-XPO Form of Face of Class X-PO Certificate
Exhibit B-XB1 Form of Face of Class X-B-1 Certificate
Exhibit B-XB2 Form of Face of Class X-B-2 Certificate
Exhibit B-XB3 Form of Face of Class X-B-3 Certificate
Exhibit B-XB4 Form of Face of Class X-B-4 Certificate
Exhibit B-XB5 Form of Face of Class X-B-5 Certificate
Exhibit B-XB6 Form of Face of Class X-B-6 Certificate
Exhibit B-4B1 Form of Face of Class 4-B-1 Certificate
Exhibit B-4B2 Form of Face of Class 4-B-2 Certificate
Exhibit B-4B3 Form of Face of Class 4-B-3 Certificate
Exhibit B-4B4 Form of Face of Class 4-B-4 Certificate
Exhibit B-4B5 Form of Face of Class 4-B-5 Certificate
Exhibit B-4B6 Form of Face of Class 4-B-6 Certificate
Exhibit C Form of Reverse of all Certificates
Exhibit D-1 Loan Group 1 Mortgage Loan Schedule
Exhibit D-2 Loan Group 2 Mortgage Loan Schedule
Exhibit D-3 Loan Group 3 Mortgage Loan Schedule
Exhibit D-4 Loan Group 4 Mortgage Loan Schedule
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
Certificate
Exhibit J List of Recordation States
Exhibit K Form of Initial Certification
Exhibit L Form of Final Certification
Exhibit M Form of Xxxxxxxx-Xxxxx Certification
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Exhibit N Relevant Servicing Criteria
Exhibit O Additional Form 10-D Disclosure
Exhibit P Additional Form 10-K Disclosure
Exhibit Q Form 8-K Disclosure Information
Exhibit R Form of Back-up Certification
Exhibit S Form of Additional Disclosure Notification
Exhibit T Form of Transferor Certificate Regarding Transfer
of Residual Certificate
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POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated September 27, 2007, is hereby
executed by and among BANC OF AMERICA FUNDING CORPORATION, as depositor
(together with its permitted successors and assigns, the "Depositor"), XXXXX
FARGO BANK, N.A., as master servicer (together with its permitted successors and
assigns, in such capacity, the "Master Servicer") and as securities
administrator (together with its permitted successors and assigns, in such
capacity, the "Securities Administrator") and U.S. BANK NATIONAL ASSOCIATION, 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:
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In consideration of the mutual agreements herein contained, the Depositor,
the Master Servicer, the Securities Administrator and the Trustee agree as
follows:
PRELIMINARY STATEMENT
The Depositor intends to sell pass-through certificates (collectively, the
"Certificates"), to be issued hereunder in multiple Classes, which in the
aggregate will evidence the entire beneficial ownership interest in the Trust
Estate created hereunder. The Certificates will consist of twenty-seven Classes
of Certificates, designated as the Class 1-A-R, Class 1-A-1, Class 1-A-2, Class
2-A-1, Class 2-A-2, Class 2-A-3, Class 3-A-1, Class 3-A-2, Class 4-A-1, Class
4-A-2, Class 4-A-3, Class X-IO, Class X-PO, Class 4-IO, Class 4-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 4-B-1,
Class 4-B-2, Class 4-B-3, Class 4-B-4, Class 4-B-5 and Class 4-B-6 Certificates.
The descriptions of the Lower-Tier REMIC and the Upper-Tier REMIC that follow
are part of the Preliminary Statement. Any inconsistencies or ambiguities in
this Agreement or in the administration of this Agreement shall be resolved
pursuant to the terms of Section 11.01 hereof in a manner that preserves the
validity of such REMIC elections described below.
Lower-Tier REMIC
As provided herein, the Securities Administrator will make an election to
treat the segregated pool of assets consisting of the Mortgage Loans and certain
other related assets subject to this Agreement as a real estate mortgage
investment conduit ("REMIC") for federal income tax purposes, and such
segregated pool of assets will be designated as the "Lower-Tier REMIC." The
Class LR Interest will represent the sole class of "residual interests" in the
Lower-Tier REMIC for purposes of the REMIC Provisions. The following table
irrevocably sets forth the designation, the Uncertificated Lower-Tier REMIC
Pass-Through Rate, the initial Uncertificated Balance, and solely for purposes
of satisfying Treasury Regulations Section 1.860G-1(a)(4)(iii), the "latest
possible maturity date" for each of the Uncertificated Lower-Tier Regular
Interests. None of the Uncertificated Lower-Tier Interests will be certificated.
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Initial Uncertificated
Uncertificated Lower-Tier REMIC Latest Possible
Designation Balance Pass-Through Rate Maturity Date(1)
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Class 1-L $26,631,189.43 6.00% October 25, 2037
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Class 1-LS $1,791.88 6.00% October 25, 2037
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Class 1-LPO $104,013.64 (3) October 25, 2037
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Class 2-L $256,437,660.94 7.00% October 25, 2037
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Class 2-LS $17,472.13 7.00% October 25, 2037
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Class 2-LPO $4,313,720.64 (3) October 25, 2037
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Class 2-LIO $16,501,082.94(2) 7.00% October 25, 2037
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Class 3-L $31,589,308.82 6.00% October 25, 2037
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Class 3-LS $2,133.44 6.00% October 25, 2037
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Class 3-LPO $241,601.87 (3) October 25, 2037
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Class 3-LIO $1,810,771.09(2) 7.00% October 25, 2037
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Class 4-L $252,434,657.51 6.00% October 25, 2037
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Class 4-LPO $2,089,440.11 (3) October 25, 2037
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Class 4-LIO $8,844,056.05(2) 6.00% October 25, 2037
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(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date in the month following the maturity date
for the Mortgage Loan with the latest maturity date has been designated as
the "latest possible maturity date" for each Uncertificated Lower-Tier
Regular Interest.
(2) Calculated in accordance with the definition of "Notional Amount" herein.
(3) The Class 1-LPO Interest, the Class 2-LPO Interest, the Class 3-LPO
Interest and the Class 4-LPO Interest will not bear interest.
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The foregoing Lower-Tier REMIC structure is intended to cause all the cash
from the Mortgage Loans to flow through the Upper-Tier REMIC as cash flow on a
Upper-Tier Regular Interest, without creating any shortfall, actual or potential
(other than for losses), to any Upper-Tier Regular Interest. To the extent that
the structure is believed to diverge from such intention, the party identifying
such ambiguity or drafting error shall notify the other parties hereto, and the
parties hereto shall attempt to resolve such ambiguity or drafting error in
accordance with Section 11.01 hereto.
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Upper-Tier REMIC
As provided herein, the Securities Administrator will make an election to
treat the segregated pool of assets consisting of the Uncertificated Lower-Tier
Regular Interests as a REMIC for federal income tax purposes, and such
segregated pool of assets will be designated as the "Upper-Tier REMIC." The
Class UR Interest will represent the sole class of "residual interests" in the
Upper-Tier REMIC for purposes of the REMIC Provisions. The following table
irrevocably sets forth (or describes) the designation, the Uncertificated
Upper-Tier REMIC Pass Through Rate, and Initial Uncertificated Balance or
Notional Amount for each Upper-Tier Regular Interest comprising the "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions and
solely for purposes of Satisfying Treasury Regulations Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each class of
Upper-Tier Regular Interests.
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Initial Uncertificated Uncertificated Upper-
Balance or Notional Tier REMIC Pass Latest Possible
Designation Amount Through Rate Maturity Date(1)
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1-A-R $100.00 (2) October 25, 2037
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1-A-1 $23,176,000.00 (2) October 25, 2037
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1-A-2 $1,665,000.00 (2) October 25, 2037
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2-A-1 $195,249,000.00 (2) October 25, 2037
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2-A-2 $21,867,000.00 (2) October 25, 2037
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2-A-3 $21,867,000.00 (2) October 25, 2037
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3-A-1 $27,484,000.00 (2) October 25, 2037
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3-A-2 $1,974,000.00 (2) October 25, 2037
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4-A-1 $228,686,000.00 (2) October 25, 2037
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4-A-2 $5,765,000.00 (2) October 25, 2037
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4-A-3 $5,766,000.00 (2) October 25, 2037
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4-IO $8,844,056.05(3) (4) October 25, 2037
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4-PO $2,089,440.11 (5) October 25, 2037
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X-B-1 $10,220,000.00 (6) October 25, 2037
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X-B-2 $2,874,000.00 (6) October 25, 2037
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X-B-3 $1,597,000.00 (6) October 25, 2037
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X-B-4 $3,193,000.00 (6) October 25, 2037
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X-B-5 $1,278,000.00 (6) October 25, 2037
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X-B-6 $2,235,456.64 (6) October 25, 2037
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4-B-1 $6,872,000.00 (2) October 25, 2037
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4-B-2 $1,782,000.00 (2) October 25, 2037
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4-B-3 $1,018,000.00 (2) October 25, 2037
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4-B-4 $1,145,000.00 (2) October 25, 2037
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4-B-5 $891,000.00 (2) October 25, 2037
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4-B-6 $509,657.51 (2) October 25, 2037
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2-X-IO $16,501,082.94(3) (4) October 25, 2037
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3-X-IO $1,810,771.09(3) (4) October 25, 2037
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1-X-PO $104,013.64 (5) October 25, 2037
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2-X-PO $4,313,720.64 (5) October 25, 2037
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3-X-PO $241,601.87 (5) October 25, 2037
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(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date in the month following the maturity date
for the Mortgage Loan with the latest maturity date has been designated as
the "latest possible maturity date" for each Upper-Tier Regular Interest.
(2) Interest will accrue on these Upper-Tier Regular Interests at a rate equal
to the Pass-Through Rate of the Corresponding Class of Certificates or
Components.
(3) Calculated in accordance with the definition of "Notional Amount" herein.
(4) The Class 2-X-IO Interest will be entitled to 100% of the amounts
distributed on the Uncertificated Lower-Tier Class 2-LIO Interest, the
Class 3-X-IO Interest will be entitled to 100% of the amounts distributed
on the Uncertificated Lower-Tier Class 2-LIO Interest and the Class 4-IO
Interest will be entitled to 100% of the amounts distributed on the
Uncertificated Lower-Tier Class 4-LIO Interest.
(5) The Class 1-X-PO Interest, Class 2-X-PO Interest, Class 3-X-PO Interest and
Class 4-PO Interest will not bear interest.
(6) Interest will accrue on these Upper-Tier Regular Interests at a rate equal
to the weighted average of the Uncertificated Lower-Tier Pass-Through Rates
on the Class 1-LS Interest, the Class 2-LS Interest and the Class 3-LS
Interest.
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SUMMARY OF CERTIFICATES
The following table sets forth characteristics of the Certificates,
together with the minimum Denominations and integral multiples in excess thereof
in which the Classes of Certificates shall be issuable:
Initial Class Integral
Certificate Balance Pass- Multiples in
or Initial Notional Through Minimum Excess of
Classes Amount Rate Denomination Minimum
Class 1-A-R $100.00 6.000% $100 N/A
Class 1-A-1 $23,176,000.00 6.000% $1,000 $1
Class 1-A-2 $1,665,000.00 6.000% $1,000 $1
Class 2-A-1 $195,249,000.00 7.000% $1,000 $1
Class 2-A-2 $21,867,000.00 7.000% $1,000 $1
Class 2-A-3 $21,867,000.00 7.000% $1,000 $1
Class 3-A-1 $27,484,000.00 6.000% $1,000 $1
Class 3-A-2 $1,974,000.00 6.000% $1,000 $1
Class 4-A-1 $228,686,000.00 6.000% $1,000 $1
Class 4-A-2 $5,765,000.00 6.000% $1,000 $1
Class 4-A-3 $5,766,000.00 6.000% $1,000 $1
Class X-IO $18,311,854.00 (1) $1,000,000 $1
Class X-PO $4,659,336.00 (2) $25,000 $1
Class 4-IO $8,844,056.00 6.000% $1,000,000 $1
Class 4-PO $2,089,440.00 (3) $25,000 $1
Class X-B-1 $10,220,000.00 (4) $25,000 $1
Class X-B-2 $2,874,000.00 (4) $25,000 $1
Class X-B-3 $1,597,000.00 (4) $25,000 $1
Class X-B-4 $3,193,000.00 (4) $25,000 $1
Class X-B-5 $1,278,000.00 (4) $25,000 $1
Class X-B-6 $2,235,456.00 (4) $25,000 $1
Class 4-B-1 $6,872,000.00 6.000% $25,000 $1
Class 4-B-2 $1,782,000.00 6.000% $25,000 $1
Class 4-B-3 $1,018,000.00 6.000% $25,000 $1
Class 4-B-4 $1,145,000.00 6.000% $25,000 $1
Class 4-B-5 $891,000.00.00 6.000% $25,000 $1
Class 4-B-6 $509,657.00 6.000% $25,000 $1
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Initial Component Integral
Balance or Initial Pass- Multiples in
Component Through Minimum Excess of
Components Notional Amount Rate Denomination Minimum
Class X-IO:
Class 2-X-IO $16,501,082.94 7.0000% N/A N/A
Class 3-X-IO $1,810,771.09 7.0000% N/A N/A
Class X-PO:
Class 1-X-PO $104,013.64 (5) N/A N/A
Class 2-X-PO $4,313,720.64 (5) N/A N/A
Class 3-X-PO $241,601.87 (5) N/A N/A
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(1) The Class X-IO Certificates are Interest Only Certificates and will be
deemed for purposes of distributions of interest to consist of two
Components: the Class 2-X-IO Component and the Class 3-X-IO Component. The
Components of the Class X-IO Certificates are not severable.
(2) The Class X-PO Certificates are Principal Only Certificates and will be
deemed for purposes of distributions of principal to consist of three
Components: the Class 1-X-PO Component, the Class 2-X-PO Component and the
Class 3-X-PO Component. The Components of the Class X-PO Certificates are
not severable.
(3) The Class 4-PO Certificates are Principal Only Certificates and will not be
entitled to distributions of interest.
(4) Interest will accrue on the Class X-B Certificates at a per annum rate
equal to the weighted average (based on the Group Subordinate Amount for
each Crossed Loan Group) of (i) with respect to Loan Group 1, 6.000%, (ii)
with respect to Loan Group 2, 7.000% and (iii) with respect to Loan Group
3, 6.000%.
(5) The Class 1-X-PO, Class 2-X-PO and Class 3-X-PO Components are principal
only Components and will not be entitled to distributions in respect of
interest.
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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:
10-K Filing Deadline: As defined in Section 3.22(c).
1933 Act: The Securities Act of 1933, as amended.
Accrued Certificate Interest: For any Distribution Date and each
interest-bearing Class (other than the Class X-IO Certificates), one month's
interest accrued during the Interest Accrual Period at the applicable
Pass-Through Rate on the applicable Class Certificate Balance. For any
Distribution Date and the Class X-IO Certificates, the sum of the Accrued
Component Interest for the IO Components.
Accrued Component Interest: For any Distribution Date and each IO
Component, one month's interest accrued during the Interest Accrual Period at
the applicable Pass-Through Rate on the applicable Component Notional Amount.
Additional Disclosure Notification: The form of notification to be included
with any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or
Form 8-K Disclosure Information which is attached hereto as Exhibit S.
Additional Form 10-D Disclosure: As defined in Section 3.22(b).
Additional Form 10-K Disclosure: As defined in Section 3.22(c).
Additional Servicer: A Subcontractor engaged by the Master Servicer or the
Securities Administrator that is a "servicer" within the meaning of Item 1101 of
Regulation AB and meets any of the criteria in Item 1108(a)(2)(i) through (iii)
of Regulation AB.
Adjusted Pool Amount: With respect to any Distribution Date and for (A)
each Crossed Loan Group, the sum as to each Mortgage Loan contributing to, or
in, such Loan Group as of the Cut-off Date of the product of (x) the Applicable
Percentage and (y) the Stated Principal Balance of such Mortgage Loan as of the
Cut-off Date minus the sum of (i) the product of the Applicable Percentage and
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 on the related Certificates on such
Distribution Date and all prior Distribution Dates and (ii) the product of the
Applicable Percentage and the principal portion of all Realized Losses (other
than Debt Service Reductions) incurred on such Mortgage Loan from the Cut off
Date through the end of the month preceding such Distribution Date and (B) Loan
Group 4, the sum as to each Mortgage Loan in such Loan Group as of the Cut-off
Date of the Stated Principal Balance of such Mortgage Loan as of the Cut-off
Date minus the sum of (i) all amounts in respect of principal received in
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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 on the related
Certificates 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 such Mortgage Loan 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 for each Loan Group, the difference between the Adjusted Pool Amount
for such Loan Group and the Adjusted Pool Amount (PO Portion) for such Loan
Group.
Adjusted Pool Amount (PO Portion): With respect to any Distribution Date
and for each Loan Group, the sum as to each Discount Mortgage Loan, if any, in
such Loan Group outstanding as of the Cut-off Date of the product of (x) the PO
Percentage for such Discount Mortgage Loan and (y) the Stated Principal Balance
of such Discount Mortgage Loan as of the Cut-off Date less the sum of (i) all
amounts in respect of principal received in respect of such Discount 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 related Certificates on
such Distribution Date and all prior Distribution Dates and (ii) the principal
portion of any Realized Loss (other than a Debt Service Reduction) incurred on
such Discount Mortgage Loan from the Cut-off Date through the end of the month
preceding the month in which such Distribution Date occurs.
Administrative Fee Rate: With respect to each Mortgage Loan, an amount
equal to the sum of (a) the related Servicing Fee Rate and (b) the related LPMI
Premium Rate, if any.
Administrative Fees: With respect to any Loan Group, the sum of (a) the
related Servicing Fee and (b) with respect to any Mortgage Loan covered by an
LPMI Policy, a fee based on the LPMI Premium Rate.
Advance: A Periodic Advance or a Servicing Advance.
Aggregate Crossed Senior Percentage: On any Distribution Date, the
percentage equal to (x) the aggregate Class Certificate Balance of the Senior
Non-PO Certificates (other than the Group 4 Certificates) divided by (y) the
aggregate Pool Principal Balance (Non-PO Portion) for the Crossed Loan Groups.
Aggregate Crossed Subordinate Percentage: On any Distribution Date, 100%
minus the Aggregate Crossed Senior Percentage for such date.
Agreement: This Pooling and Servicing Agreement together with all
amendments hereof and supplements hereto.
Applicable Percentage: For each Apportioned Mortgage Loan, the percentages
set forth below:
(A) Apportioned Mortgage Loans with Net Mortgage Interest Rates less than
or equal to 6.000%:
-9-
Principal payments due on the Apportioned Mortgage Loans with Net Mortgage
Interest Rates less than or equal to 6.000% will be allocated to Loan Group 1.
The Applicable Percentage for each such Apportioned Mortgage Loan and Loan
Group 1 is 100%.
(B) Apportioned Mortgage Loans with Net Mortgage Interest Rates greater
than 6.000% but less than 7.000%:
Principal payments due on the Apportioned Mortgage Loans with Net Mortgage
Interest Rates greater than 6.000% but less than 7.000% will be allocated
between Loan Group 1 and Loan Group 2, based upon the Applicable Percentage.
The Applicable Percentage for the principal portion of each such
Apportioned Mortgage Loan contributing to Loan Group 1 is equal to (a) 7.000%
minus the related Net Mortgage Interest Rate of such Apportioned Mortgage Loan
divided by (b) 1.000% and the Applicable Percentage for the portion of each such
Apportioned Mortgage Loan contributing to Loan Group 2 is equal to (a) 100% less
(b)(x) 7.000% minus the related Net Mortgage Interest Rate for such Mortgage
Loan divided by (y) 1.000%.
There are no Apportioned Mortgage Loans with Net Mortgage Interest Rates
equal to or greater than 7.000%.
Notwithstanding any provision herein to the contrary, each Mortgage Loan
that is modified to reduce its Net Mortgage Interest Rate shall be deemed to
have the same Applicable Percentage as was based on the original Net Mortgage
Interest Rate of such Mortgage Loan.
The Mortgage Loans in Loan Subgroup 2B, Loan Group 3 and Loan Group 4 have
not been apportioned to more than one Loan Group and references to "Applicable
Percentages" for these Mortgage Loans shall be deemed to be 100%.
Apportioned Mortgage Loans: Any of the Group 1 Mortgage Loans or Subgroup
2A 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 generally no more than four months prior to origination (or, with
respect to newly constructed properties, no more than twelve months prior to
origination) of such Mortgage Loan or, in certain cases, an automated valuation
model (if applicable) or tax assessed value 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, in certain cases, an automated valuation
model (if applicable) or tax assessed value, 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
Mortgage Insurance Policy in force.
Assessment of Compliance: As defined in Section 3.21(a).
-10-
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.
Attestation Report: As defined in Section 3.21(b).
Authenticating Agents: As defined in Section 9.10.
Back-up Certification: As defined in Section 3.22(e).
BAFC: Banc of America Funding Corporation.
BAMCC: Banc of America Mortgage Capital Corporation.
BANA: Bank of America, National Association, a national banking
association, or its successor in interest.
BANA Servicing Agreement: The Servicing Agreement, dated September 27,
2007, by and between BAFC, as depositor, and BANA, as servicer.
Book-Entry Certificate: All Classes 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 BANA 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 BANA pursuant
to Section 7(b) 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 states in which the servicing offices of any Servicer are located, the
state or states in which the master servicing offices of the Master Servicer are
located or the state or states in which the Corporate Trust Offices of the
Trustee and the Securities Administrator are located are required or authorized
by law or executive order to be closed.
Calculated Principal Distribution: As defined in Section 5.04(b)(iii).
Certificate: Any of the Banc of America Funding Corporation Mortgage
Pass-Through Certificates, Series 2007-8 that are issued pursuant to this
Agreement.
Certificate Account: The Eligible Account created and maintained by the
Securities Administrator pursuant to Section 3.09(b) in the name of the
Securities Administrator, on behalf of the Trustee, for the benefit of the
Certificateholders and designated "Xxxxx Fargo Bank, N.A., as Securities
-11-
Administrator for U.S. Bank National Association, as Trustee, in trust for
registered holders of Banc of America Funding Corporation Mortgage Pass-Through
Certificates, Series 2007-8." The Certificate Account shall be deemed to consist
of six sub-accounts; one for each of the Loan Groups (the "Loan Group 1
Sub-Account," the "Loan Group 2 Sub-Account," the "Loan Group 3 Sub-Account" and
the "Loan Group 4 Sub-Account"), and one for each of the Lower-Tier Certificate
Sub-Account and the Upper-Tier Certificate Sub-Account. Funds in the Certificate
Account shall be held in trust for the Holders of the Certificates 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, Xxxxx Fargo Bank, N.A.; thereafter any
other Certificate Custodian acceptable to the Depository and selected by the
Securities Administrator.
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 Master 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 neither the
Securities Administrator nor the Trustee shall be responsible for knowing that
any Certificate is registered in the name of an affiliate of the Depositor or
the Master Servicer unless one of its Responsible Officers has actual knowledge
thereof.
Certification Parties: As defined in Section 3.22(e).
Certifying Person: As defined in Section 3.22(e).
Class: As to the Certificates, the Class 1-A-R, Class 1-A-1, Class 1-A-2,
Class 2-A-1, Class 2-A-2, Class 2-A-3, Class 3-A-1, Class 3-A-2, Class 4-A-1,
Class 4-A-2, Class 4-A-3, Class X-IO, Class X-PO, Class 4-IO, Class 4-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
4-B-1, Class 4-B-2, Class 4-B-3, Class 4-B-4, Class 4-B-5 and Class 4-B-6
Certificates, as the case may be.
Class 1-A-R Certificate: The Class 1-A-R Certificate, which represents the
ownership of the Class UR Interest and the Class LR Interest.
-12-
Class 1-A-1 Loss Amount: With respect to any Distribution Date after the
Senior Credit Support Depletion Date for the Crossed Group, 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
5.04(b)(i) to such Class, without regard to the operation of Section
5.04(b)(iv).
Class 1-A-2 Loss Allocation Amount: With respect to any Distribution Date
after the Senior Credit Support Depletion Date for the Crossed Group, 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 2-A-1 Loss Amount: With respect to any Distribution Date after the
Senior Credit Support Depletion Date for the Crossed Group, 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
5.04(b)(i) to such Class, without regard to the operation of Section
5.04(b)(iv).
Class 2-A-2 Loss Allocation Amount: With respect to any Distribution Date
after the Senior Credit Support Depletion Date for the Crossed Group and after
the Class Certificate Balance of the Class 2-A-3 Certificates has been reduced
to zero, 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-A-2 Loss Amount: With respect to any Distribution Date after the
Senior Credit Support Depletion Date for the Crossed Group, 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
5.04(b)(i) to such Class, without regard to the operation of Section
5.04(b)(iv).
Class 2-A-3 Loss Allocation Amount: With respect to any Distribution Date
after the Senior Credit Support Depletion Date for the Crossed Group, the lesser
of (a) the Class Certificate Balance of the Class 2-A-3 Certificates with
respect to such Distribution Date prior to any reduction for the Class 2-A-3
Loss Allocation Amount and (b) the sum of the Class 2-A-1 Loss Amount and the
Class 2-A-2 Loss Amount with respect to such Distribution Date.
Class 2-X-IO Notional Amount: With respect to each Distribution Date and
the Class 2-X-IO Component, an amount equal to the product of (i) the aggregate
of 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 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 7.00% and
(b) the denominator of which is equal to 7.00%.
-00-
Xxxxx 0-X-0 Xxxx Xxxxxx: With respect to any Distribution Date after the
Senior Credit Support Depletion Date for Group 3, the amount, if any, by which
the Class Certificate Balance of the Class 3-A-1 Certificates would be reduced
as a result of the allocation of any reduction pursuant to Section 5.04(b)(i) to
such Class, without regard to the operation of Section 5.04(b)(iv).
Class 3-A-2 Loss Allocation Amount: With respect to any Distribution Date
after the Senior Credit Support Depletion Date for the Crossed Group, the lesser
of (a) the Class Certificate Balance of the Class 3-A-2 Certificates with
respect to such Distribution Date prior to any reduction for the Class 3-A-2
Loss Allocation Amount and (b) the Class 3-A-1 Loss Amount with respect to such
Distribution Date.
Class 3-X-IO Notional Amount: With respect to each Distribution Date and
the Class 3-X-IO Component, an amount equal to the product of (i) the aggregate
of 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 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 6.00% and
(b) the denominator of which is equal to 7.00%.
Class 4-A-1 Loss Amount: With respect to any Distribution Date after the
Senior Credit Support Depletion Date for the Crossed Group, the amount, if any,
by which the Class Certificate Balance of the Class 4-A-1 Certificates would be
reduced as a result of the allocation of any reduction pursuant to Section
5.04(b)(i) to such Class, without regard to the operation of Section
5.04(b)(iv).
Class 4-A-2 Loss Allocation Amount: With respect to any Distribution Date
after the Senior Credit Support Depletion Date for the Crossed Group and after
the Class Certificate Balance of the Class 4-A-3 Certificates has been reduced
to zero, the lesser of (a) the Class Certificate Balance of the Class 4-A-2
Certificates with respect to such Distribution Date prior to any reduction for
the Class 4-A-2 Loss Allocation Amount and (b) the Class 4-A-1 Loss Amount with
respect to such Distribution Date.
Class 4-A-2 Loss Amount: With respect to any Distribution Date after the
Senior Credit Support Depletion Date for the Crossed Group, the amount, if any,
by which the Class Certificate Balance of the Class 4-A-2 Certificates would be
reduced as a result of the allocation of any reduction pursuant to Section
5.04(b)(i) to such Class, without regard to the operation of Section
5.04(b)(iv).
Class 4-A-3 Loss Allocation Amount: With respect to any Distribution Date
after the Senior Credit Support Depletion Date for the Crossed Group, the lesser
of (a) the Class Certificate Balance of the Class 4-A-3 Certificates with
respect to such Distribution Date prior to any reduction for the Class 4-A-3
Loss Allocation Amount and (b) the sum of the Class 4-A-1 Loss Amount and the
Class 4-A-2 Loss Amount with respect to such Distribution Date.
-14-
Class 4-IO Notional Amount: With respect to each Distribution Date and the
Class 4-IO Certificates will be equal to the product of (i) the aggregate of 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 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 6.00% and
(b) the denominator of which is equal to 6.00%.
Class Certificate Balance: With respect to any Class of Certificates (other
than the Interest Only Certificates and the Component Certificates) and any date
of determination, and subject to Section 5.04(b)(vi), an amount equal to (a) the
Initial Class Certificate Balance of such Class, minus the sum of (i) all
distributions of principal allocated thereto (including in the case of a Class
of Class B Certificates, any principal otherwise payable to such Class of
Certificates used to pay any PO Deferred Amounts), (ii) all reductions in Class
Certificate Balance previously allocated thereto pursuant to Section 5.04(b)(i)
and (iii) in the case of the Class 1-A-2, Class 2-A-2, Class 2-A-3, Class 3-A-2,
Class 4-A-2 and Class 4-A-3 Certificates, any reduction allocated thereto
pursuant to Section 5.04(b)(iv) plus (b) the sum of (i) all increases in Class
Certificate Balance previously allocated thereto pursuant to Section 5.04(b)(i)
and (ii) in the case of the Class 1-A-2, Class 2-A-2, Class 2-A-3, Class 3-A-2,
Class 4-A-2 and Class 4-A-3 Certificates, any increases allocated thereto
pursuant to Section 5.04(b)(iv). The Class X-IO and Class 4-IO Certificates are
Interest Only Certificates and have no Class Certificate Balance. The Class
Certificate Balance of the X-PO Certificates as of any date of determination
shall equal the sum of the Component Balances of the related Components.
Class Interest Shortfall: For any Distribution Date and each Class of
interest-bearing Certificates (other than the Class X-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 on such Distribution Date pursuant to clause (i) of the definition of
"Interest Distribution Amount."
Class Unpaid Interest Shortfall: As to any Distribution Date and each Class
of interest-bearing Certificates (other than the Class X-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 on such prior Distribution Dates pursuant to clause (ii) of the definition
of "Interest Distribution Amount."
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.
Closing Date: September 27, 2007.
Code: The Internal Revenue Code of 1986, as amended.
Collection Period: With respect to any Distribution Date, the period from
the second day of the calendar month preceding the month in which such
Distribution Date occurs through the first day of the month in which such
Distribution Date occurs.
-15-
Commission: The U.S. Securities and Exchange Commission.
Compensating Interest: With respect to any Distribution Date and Servicer,
an amount equal to the lesser of (a) the aggregate Servicing Fee payable to such
Servicer for the Mortgage Loans serviced by such Servicer as of the Due Date of
the month preceding the month of such Distribution Date and (b) the aggregate of
the Prepayment Interest Shortfalls on the Mortgage Loans serviced by such
Servicer resulting from Principal Prepayments on such Mortgage Loans during the
related Prepayment Period; provided, however, Compensating Interest payable for
any month by BANA will be limited to one-twelfth of 0.2500% of the aggregate
Stated Principal Balance of the Mortgage Loans serviced by BANA, calculated as
of the Due Date of the month preceding the month of such Distribution Date.
Compliance Statement: As defined in Section 3.20.
Component: Any of the Class 1-X-PO, Class 2-X-IO, Class 2-X-PO, Class
3-X-IO and Class 3-X-PO Components, each of which represents the corresponding
Upper-Tier Regular Interest for purposes of the REMIC Provisions.
Component Balance: With respect to each PO Component and any date of
determination, the Initial Component Balance of each PO Component minus (A) the
sum of (i) all distributions of principal made with respect thereto and (ii) all
reductions in the related Component Balance previously allocated thereto
pursuant to Section 5.02(b) plus (B) all increases in the related Component
Balance previously allocated thereto pursuant to Section 5.02(b). The IO
Components are interest only Components and have no Component Balance.
Component Interest Distribution Amount: For any Distribution Date and each
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 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, any of the Class
2-X-IO Notional Amount or the Class 3-X-IO Notional Amount, as applicable.
Component Unpaid Interest Shortfall: As to any Distribution Date and each
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."
Cooperative: A private, cooperative housing corporation which owns or
leases land and all or part of a building or buildings, including apartments,
spaces used for commercial purposes and common areas therein and whose board of
directors authorizes, among other things, the sale of Cooperative Stock.
-16-
Cooperative Apartment: A dwelling unit in a multi-dwelling building owned
or leased by a Cooperative, which unit the Mortgagor has an exclusive right to
occupy pursuant to the terms of a proprietary lease or occupancy agreement.
Cooperative Lease: With respect to a Cooperative Loan, the proprietary
lease or occupancy agreement with respect to the Cooperative Apartment occupied
by the Mortgagor and relating to the related Cooperative Stock, which lease or
agreement confers an exclusive right to the holder of such Cooperative Stock to
occupy such apartment.
Cooperative Loans: Any of the Mortgage Loans made in respect of a
Cooperative Apartment, evidenced by a Mortgage Note and secured by (i) a
Security Agreement, (ii) the related Cooperative Stock Certificate, (iii) an
assignment or mortgage of the Cooperative Lease, (iv) financing statements and
(v) a stock power (or other similar instrument), and ancillary thereto, a
Recognition Agreement, each of which was transferred and assigned to the Trust
pursuant to Section 2.01.
Cooperative Stock: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership instrument
in the related Cooperative.
Cooperative Stock Certificate: With respect to a Cooperative Loan, the
stock certificate or other instrument evidencing the related Cooperative Stock.
Corporate Trust Office: With respect to the Trustee, the office of the
Trustee, which office at the date of the execution of this instrument is located
at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Services, BAFC, Series 2007-8, or at such other address as the
Trustee may designate from time to time by notice to the Certificateholders, the
Depositor, the Securities Administrator and the Master Servicer. With respect to
the Securities Administrator, the principal corporate trust office of the
Securities Administrator 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 0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Client Manager - BAFC 2007-8, and for
certificate transfer purposes is located at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Services - BAFC 2007-8,
or at such other address as the Securities Administrator may designate from time
to time by notice to the Certificateholders, the Depositor, the Trustee and the
Master Servicer.
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Corresponding Class or Component: The Class of interests in one REMIC
created under this Agreement that corresponds to a Class or Component of a Class
of Certificates in the manner set out below:
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Corresponding Upper-Tier Corresponding Class or
Regular Interest Component
--------------------------------------------------------------------------------
Class 1-A-1 Interests Class 1-A-1 Certificates
--------------------------------------------------------------------------------
Class 1-A-2 Interests Class 1-A-2 Certificates
--------------------------------------------------------------------------------
Class 2-A-1 Interests Class 2-A-1 Certificates
--------------------------------------------------------------------------------
Class 2-A-2 Interests Class 2-A-2 Certificates
--------------------------------------------------------------------------------
Class 2-A-3 Interests Class 2-A-3 Certificates
--------------------------------------------------------------------------------
Class 3-A-1 Interests Class 3-A-1 Certificates
--------------------------------------------------------------------------------
Class 3-A-2 Interests Class 3-A-2 Certificates
--------------------------------------------------------------------------------
Class 4-A-1 Interests Class 4-A-1 Certificates
--------------------------------------------------------------------------------
Class 4-A-2 Interests Class 4-A-2 Certificates
--------------------------------------------------------------------------------
Class 4-A-3 Interests Class 4-A-3 Certificates
--------------------------------------------------------------------------------
Class 4-IO Interests Class 4-IO Certificates
--------------------------------------------------------------------------------
Class 4-PO Interests Class 4-PO Certificates
--------------------------------------------------------------------------------
Class X-B-1 Interests Class X-B-1 Certificates
--------------------------------------------------------------------------------
Class X-B-2 Interests Class X-B-2 Certificates
--------------------------------------------------------------------------------
Class X-B-3 Interests Class X-B-3 Certificates
--------------------------------------------------------------------------------
Class X-B-4 Interests Class X-B-4 Certificates
--------------------------------------------------------------------------------
Class X-B-5 Interests Class X-B-5 Certificates
--------------------------------------------------------------------------------
Class X-B-6 Interests Class X-B-6 Certificates
--------------------------------------------------------------------------------
Class 4-B-1 Interests Class 4-B-1 Certificates
--------------------------------------------------------------------------------
Class 4-B-2 Interests Class 4-B-2 Certificates
--------------------------------------------------------------------------------
Class 4-B-3 Interests Class 4-B-3 Certificates
--------------------------------------------------------------------------------
Class 4-B-4 Interests Class 4-B-4 Certificates
--------------------------------------------------------------------------------
Class 4-B-5 Interests Class 4-B-5 Certificates
--------------------------------------------------------------------------------
Class 4-B-6 Interests Class 4-B-6 Certificates
--------------------------------------------------------------------------------
Class 2-X-IO Interests Class 2-X-IO Component
--------------------------------------------------------------------------------
Class 3-X-IO Interests Class 3-X-IO Component
--------------------------------------------------------------------------------
Class 1-X-PO Interests Class 1-X-PO Component
--------------------------------------------------------------------------------
Class 2-X-PO Interests Class 2-X-PO Component
--------------------------------------------------------------------------------
Class 3-X-PO Interests Class 3-X-PO Component
--------------------------------------------------------------------------------
Crossed Loan Group: Loan Group 1, Loan Group 2 and Loan Group 3.
Crossed Loan Group Mortgage Loans: The Group 1 Mortgage Loans, the Group 2
Mortgage Loans and the Group 3 Mortgage Loans.
Custodian: Initially, the Trustee and thereafter any custodian appointed by
the Trustee pursuant to Section 9.12. A 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. None of the Master Servicer, any
Servicer or the Depositor, or 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 (i) any Servicer,
procedures (including collection procedures) that a 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
-18-
are located and (ii) the Master Servicer, those master servicing procedures that
constitute customary and usual standards of practice of prudent mortgage loan
master servicers.
Cut-off Date: September 1, 2007.
Cut-off Date Pool Principal Balance: For each Loan Group, the aggregate of
the Applicable Percentages of the Stated Principal Balances of the Mortgage
Loans contributing to or in such Loan Group as of the Cut-off Date, which is
$26,736,994.95 for Loan Group 1, $260,768,853.71 for Loan Group 2,
$31,833,044.13 for Loan Group 3 and $254,524,097.62 for Loan Group 4.
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 of such Mortgage
Loan 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
applicable Servicer, the Master Servicer or the Trustee, as applicable, in
accordance with the terms of such Mortgage Loan as in effect on the Cut-off
Date.
Defective Mortgage Loan: Any Mortgage Loan which is required to be cured,
repurchased or substituted for pursuant to Sections 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 applicable 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 applicable
Servicer, the Master Servicer or the Trustee, as applicable, in accordance with
the terms of such Mortgage Loan as in effect on the Cut-off Date.
Definitive Certificates: As defined in Section 6.02(c)(iii).
Delinquent: Any Mortgage Loan with respect to which the Monthly Payment due
on a Due Date is not made by the close of business on the next scheduled Due
Date for such Mortgage Loan.
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Denomination: The amount, if any, specified on the face of each Certificate
(other than an Interest Only Certificate) representing the principal portion of
the related Initial Class Certificate Balance evidenced by such Certificate. As
to any Interest Only Certificate, the amount specified on the face of each such
Certificate representing the portion of the Initial Notional Amount evidenced by
such Certificate.
Depositor: Banc of America Funding Corporation, 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.
Designated Interest Amount: With respect to any Apportioned Mortgage Loan
and any Loan Group, the product of (i) the Applicable Percentage for such
Mortgage Loan of the Stated Principal Balance of such Mortgage Loan and (ii) the
Designated Rate for such Loan Group.
Designated Interest Percentage: With respect to any Apportioned Mortgage
Loan in Loan Group 1 that does not also contribute to Loan Group 2, 100%. With
respect to any Apportioned Mortgage Loan that contributes to Loan Group 1 and
Loan Group 2 and any Loan Group, the quotient, expressed as a percentage, of (a)
the Designated Interest Amount with respect to such Apportioned Mortgage Loan
and such Loan Group and (b) the sum of (x) the applicable Designated Interest
Amount with respect to such Apportioned Mortgage Loan and such Loan Group and
(y) the Designated Interest Amount with respect to such Apportioned Mortgage
Loan and the other Loan Group to which such Apportioned Mortgage Loan
contributes.
Designated Rate: With respect to each Apportioned Mortgage Loan, or portion
thereof, in (i) Loan Group 1, 6.000%, and (ii) Loan Subgroup 2A, 7.000%.
Determination Date: With respect to any Distribution Date and for each
Servicer, as defined in the applicable Servicing Agreement.
Discount Mortgage Loan: Any of the Group 1 Discount Mortgage Loans, the
Group 2 Discount Mortgage Loans, the Group 3 Discount Mortgage Loans or the
Group 4 Discount Mortgage Loans.
Distribution Date: The 25th day of each month beginning in October 2007
(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.
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XXXXX: The Commission's Electronic Data Gathering and Retrieval System.
Eligible Account: Any of (i) an account or accounts maintained with 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; following a downgrade, withdrawal, or suspension of such
institution's rating, each account should promptly (and in any case within not
more than 30 calendar days) be moved to a qualifying institution or to one or
more segregated trust accounts in the trust department of such institution, if
permitted; (ii) a trust account or accounts maintained with the trust department
of a federal or state chartered depository institution or trust company
(including the Trustee, the Master Servicer and the Securities Administrator),
acting in its fiduciary capacity; or (iii) 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, the
Master Servicer or the Securities Administrator.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA Restricted Certificates: Any of the Class 1-A-R, Class X-B-4, Class
X-B-5, Class X-B-6, Class 4-B-4, Class 4-B-5 and Class 4-B-6 Certificates and
any Certificate that no longer meets the applicable rating requirements of an
Underwriter's Exemption.
Escrow Account: As defined in Section 3.08(a).
Escrow Payments: The amounts constituting taxes, assessments, Primary
Mortgage 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 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 applicable Servicer as
Nonrecoverable Advance(s) with respect to such Mortgage Loan pursuant to Section
3.11(a)(iv), 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.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Xxxxxx Mae: The entity formally known as the Federal National Mortgage
Association (FNMA), or any successor thereto.
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FDIC: The Federal Deposit Insurance Corporation, or any successor thereto.
Final Distribution Date: The Distribution Date on which the final
distribution in respect of some or all of the Certificates will be made pursuant
to Section 10.01.
Financial Market Service: Bloomberg LP, Intex Solutions, Inc. and any other
financial information provider designated by the Depositor by written notice to
the Securities Administrator.
FIRREA: The Financial Institutions Reform, Recovery and Enforcement Act of
1989, as amended.
Fitch: Fitch Ratings.
Form 8-K Disclosure Information: As defined in Section 3.22(d).
Fractional Interest: As defined in Section 5.02(d).
Xxxxxxx Mac: The entity formally known as the Federal Home Loan Mortgage
Corporation (FHLMC), or any successor thereto.
Group 1: The Group 1 Certificates.
Group 1 Certificates: The Class 1-A-1, Class 1-A-2 and Class 1-A-R
Certificates, each of which (other than the Class 1-A-R Certificate) represents
the corresponding Upper-Tier Regular Interest for purposes of the REMIC
Provisions.
Group 1 Components: The Class 1-X-PO Component.
Group 1 Discount Mortgage Loan: A Group 1 Mortgage Loan with a Net Mortgage
Interest Rate as of the Cut-off Date less than 6.00% per annum.
Group 1 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-1 hereto.
Group 2: The Group 2 Certificates.
Group 2 Certificates: The Class 2-A-1, Class 2-A-2 and Class 2-A-3
Certificates, each of which represent the corresponding Upper-Tier Regular
Interest for purposes of the REMIC Provisions.
Group 2 Components: The Class 2-X-IO and Class 2-X-PO Components.
Group 2 Discount Mortgage Loan: A Group 2 Mortgage Loan with a Net Mortgage
Interest Rate as of the Cut-off Date less than 7.00% 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 greater than or equal to 7.00%.
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Group 3: The Group 3 Certificates.
Group 3 Certificates: The Class 3-A-1 and Class 3-A-2 Certificates, each of
which represents the corresponding Upper-Tier Regular Interest for purposes of
the REMIC Provisions.
Group 3 Components: The Class 3-X-IO and Class 3-X-PO Components.
Group 3 Discount Mortgage Loan: A Group 3 Mortgage Loan with a Net Mortgage
Interest Rate as of the Cut-off Date less than 6.00% 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 greater than or equal to 6.00%.
Group 4: The Group 4 Certificates.
Group 4 Certificates: The Class 4-A-1, Class 4-A-2, Class 4-A-3, Class 4-IO
and Class 4-PO Certificates, each of which represents the corresponding
Upper-Tier Regular Interest for purposes of the REMIC Provisions.
Group 4 Discount Mortgage Loan: A Group 4 Mortgage Loan with a Net Mortgage
Interest Rate as of the Cut-off Date less than 6.00% 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 greater than or equal to 6.00%.
Group Subordinate Amount: With respect to any Distribution Date and any
Loan Group, the excess of the Pool Principal Balance (Non-PO Portion) for such
Loan Group over the aggregate Class Certificate Balance of the Senior Non-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, the Trustee, the
Securities Administrator, the Master Servicer and the Servicers, (ii) does not
have any direct financial interest or any material indirect financial interest
in the Depositor, the Trustee, the Securities Administrator, the Master Servicer
or the Servicers or in an affiliate of any of them, and (iii) is not connected
with the Depositor, the Trustee, the Securities Administrator, the Master
Servicer or the Servicers as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions. When used
with respect to any accountants, a Person who is "independent" within the
meaning of Rule 2-01(B) of the Commission's Regulation S-X.
Initial Class Certificate Balance: As to each Class of Certificates (other
than the Class X-PO Certificates and the Interest Only Certificates), the Class
Certificate Balance set forth in the Preliminary Statement. The Interest Only
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Certificates 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 of 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 IO Components have no Initial
Component Balance.
Initial Component Notional Amount: As to each IO Component, the Component
Notional Amount set forth in the Preliminary Statement.
Initial Notional Amount: As to the Class X-IO Certificates, the sum of the
Initial Component Notional Amounts of the IO Components.
Insurance Policy: With respect to any Mortgage Loan included in the Trust
Estate, any Primary Mortgage Insurance Policy or any other insurance policy
(including any policy covering any Mortgage Loan or Mortgaged Property,
including without limitation, any hazard insurance policy required pursuant to
Section 3.12, any title insurance policy described in Section 2.01 and any
Federal Housing Administration insurance policies and Department of Veterans
Affairs insurance policies), 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
interest-bearing Certificates (other than the Class X-IO Certificates) and each
interest-bearing 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
Interest Distribution Amount: For any Distribution Date and each Class of
interest-bearing Certificates (other than the Class X-IO Certificates), the sum
of (i) 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 X-IO Certificates, the sum of the Component
Interest Distribution Amounts for the IO Components.
Interest Only Certificates: The Class X-IO and the Class 4-IO Certificates.
IO Components: The Class 2-X-IO and Class 3-X-IO Components.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) that was liquidated in the
related Prepayment Period and as to which the applicable Servicer has certified
(in accordance with the applicable Servicing Agreement) that it has received all
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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 the Crossed Loan Group.
Loan Group 1: The Group 1 Mortgage Loans.
Loan Group 2: The Group 2 Mortgage Loans.
Loan Group 3: The Group 3 Mortgage Loans.
Loan Group 4: The Group 4 Mortgage Loans.
Loan Subgroup 2A: The Subgroup 2A Mortgage Loans.
Loan Subgroup 2B: The Subgroup 2B Mortgage Loans.
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 origination
and the denominator of which is the Appraised Value of the related Mortgaged
Property.
Losses: As defined in Section 5.11.
Lower-Tier Certificate Sub-Account: The sub-account of the Certificate
Account designated by the Securities Administrator pursuant to Section 3.09(h).
Lower-Tier REMIC: As defined in the Preliminary Statement, the assets of
which consist of the Mortgage Loans, such amounts as shall be held in the
Lower-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.
LPMI Policy: A lender-paid primary mortgage insurance policy.
LPMI Premium Rate: With respect to each Mortgage Loan covered by an LPMI
Policy, as set forth in the applicable Mortgage Loan Schedule.
Master Servicer: Xxxxx Fargo Bank, N.A., and any successors-in-interest
and, if a successor master servicer is appointed hereunder, such successor, as
master servicer.
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Master Servicer Custodial Account: The Eligible Account created and
maintained by the Master Servicer pursuant to Section 3.09(c) in the name of the
Master Servicer for the benefit of the Certificateholders and designated "Xxxxx
Fargo Bank, N.A., as Master Servicer, in trust for the registered holders of
Banc of America Funding Corporation Mortgage Pass-Through Certificates, Series
2007-8."
Master Servicer Custodial Account Reinvestment Income: For each
Distribution Date, all income and gain net of any losses realized since the
preceding Distribution Date from Permitted Investments of funds in the Master
Servicer Custodial Account.
Master Servicer's Certificate: The monthly report required by Section 4.01.
Master Servicing Officer: Any officer of the Master Servicer involved in,
or responsible for, the administration and master servicing of the Mortgage
Loans whose name appears on a list of servicing officers furnished to the
Securities Administrator and the Trustee by the Master Servicer, as such list
may from time to time be amended.
Master Servicing Transfer Costs: All reasonable costs and expenses
(including attorney's fees) incurred by the Trustee or a successor master
servicer in connection with the transfer of master servicing or servicing from a
predecessor master servicer, including, without limitation, any costs or
expenses associated with the complete transfer of all master servicing data or
servicing data and the completion, correction or manipulation of such master
servicing data or servicing data as may be required by the Trustee or successor
master servicer to correct any errors or insufficiencies in the master servicing
data or servicing data or otherwise to enable the Trustee or a successor master
servicer to master service or service, as the case may be, the applicable
Mortgage Loans properly and effectively.
MERS: As defined in Section 2.01(b)(iii).
Monthly Covered Amount: As defined in the Mortgage Loan Purchase Agreement.
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 (i) any related Debt
Service Reduction and any Deficient Valuation that affect the amount of the
monthly payment due on such Mortgage Loan, (ii) the Monthly Covered Amount
representing such scheduled monthly payment and (iii) any Servicer Modification.
Monthly Statement: As defined in Section 5.05(b).
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 and any additional documents required to be added to
the Mortgage File pursuant to this Agreement.
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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 provisions of the related Mortgage Note.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase Agreement,
dated September 27, 2007, between BANA, as seller, and the Depositor, as
purchaser.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to time
amended by the related Master 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 X-0, Xxxxxxx X-0, Xxxxxxx X-0 and Exhibit D-4 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; (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) a code indicating the initial Servicer;
(xvi) the Appraised Value; (xvii) the closing date of the Mortgage Loan; (xviii)
the Servicing Fee Rate; (xix) the LPMI Fee Rate, if any; (xx) a code indicating
whether the Mortgage Loan has a prepayment charge; and (xxi) the Applicable
Percentage, if any. 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 Cooperative Stock or residential long-term leases.
Mortgagor: The obligor on a Mortgage Note.
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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
calendar month preceding the month of such Distribution Date reduced by the
applicable Administrative Fee Rate for such Mortgage Loan.
Non-PO Percentage: As to any Group 1 Discount Mortgage Loan, Group 3
Discount Mortgage Loan or Group 4 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 Mortgage Loan and the denominator of which is 6.000%.
As to any Group 2 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 Mortgage Loan and the denominator of which is 7.000%. As to
any Mortgage Loan that is not a Discount Mortgage Loan, 100%.
Non-PO Principal Amount: As to any Distribution Date and any Loan Group,
the sum of (i) the sum of the applicable Non-PO Percentage of (a) the Applicable
Percentage of the principal portion of each Monthly Payment due on each Mortgage
Loan contributing to, or in, such Loan Group on the related Due Date (net of
unreimbursed Advances and other amounts as to which the related Servicer is
entitled to be reimbursed pursuant to the applicable Servicing Agreement), (b)
the Applicable Percentage of the Stated Principal Balance, as of the date of
repurchase, of (i) each Mortgage Loan contributing to or in such Loan Group that
was repurchased by a Servicer pursuant to the applicable Servicing Agreement as
of such Distribution Date, (ii) each Mortgage Loan contributing to, or in, such
Loan Group repurchased by the Sponsor pursuant to the Mortgage Loan Purchase
Agreement or a Purchase Obligation as of such Distribution Date, (iii) each
Mortgage Loan contributing to, or in, such Loan Group repurchased by the
Depositor pursuant to Section 2.04, (iv) each Mortgage Loan contributing to or
in such Loan Group purchased by the Master Servicer pursuant to Section 10.01
and (v) each Mortgage Loan contributing to or in such Loan Group purchased by
the related originator as set forth in Section 2.02, (c) the Applicable
Percentage of any Substitution Adjustment Amount (net of unreimbursed Advances
and other amounts as to which the Servicer is entitled to be reimbursed pursuant
to the terms of the applicable Servicing Agreement) in connection with a
Defective Mortgage Loan contributing to, or in, such Loan Group received during
the related Prepayment Period, (d) the Applicable Percentages of any Liquidation
Proceeds other than amounts to which the related Servicer is entitled to be
reimbursed pursuant to the terms of the applicable Servicing Agreement allocable
to recoveries of principal of Mortgage Loans contributing to, or in, such Loan
Group that are not yet Liquidated Mortgage Loans received by a Servicer during
the related Prepayment Period, (e) with respect to each Mortgage Loan
contributing to, or in, such Loan Group that became a Liquidated Mortgage Loan
during the related Prepayment Period, the Applicable Percentage of the amount of
Liquidation Proceeds (excluding Excess Proceeds) allocable to principal received
by a Servicer with respect to such Mortgage Loan during such period and (f) the
Applicable Percentages of all Principal Prepayments on the Mortgage Loans
contributing to, or in, such Loan Group received by a Servicer during the
related Prepayment Period; and (ii) any Non-PO Recovery with respect to such
Loan Group for such Distribution Date.
Non-PO Recovery: As to any Distribution Date and any Loan Group, the amount
of all Recoveries with respect to such Loan Group during the related Prepayment
Period less the PO Recovery with respect to such Loan Group for such
Distribution Date.
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Non-Supported Interest Shortfalls: As to any Distribution Date and the
Crossed Group, the amount, if any, by which the aggregate of Prepayment Interest
Shortfalls related to the Mortgage Loans in the Crossed Group exceeds the
aggregate Compensating Interest for the Mortgage Loans in the Crossed Group for
such Distribution Date and (ii) Loan Group 4, the amount, if any, by which the
aggregate of Prepayment Interest Shortfalls related to the Mortgage Loans in
Loan Group 4 exceeds the aggregate Compensating Interest for the Mortgage Loans
in Loan Group 4 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 applicable 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 the Class 2-X-IO Component, the Class
2-X-IO Interest and the Class 2-LIO Interest and any date of determination, the
Class 2-X-IO Notional Amount. With respect to the Class 3-X-IO Component, the
Class 3-X-IO Interest and the Class 3-LIO Interest and any date of
determination, the Class 3-X-IO Notional Amount. With respect to the Class X-IO
Certificates and any date of determination, the Class X-IO Notional Amount. With
respect to the Class 4-IO Certificates, the Class 4-IO Interest and the Class
4-LIO Interest and any date of determination, the Class 4-IO Notional Amount.
NYCEMA: A New York Consolidation, Extension and Modification Agreement.
OCC: The Office of the Comptroller of Currency.
Offered Certificates: The Senior, Class X-B-1, Class X-B-2, Class X-B-3,
Class 4-B-1, Class 4-B-2 and Class 4-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 Master Servicer, as
the case may be, and delivered to the Trustee or the Securities Administrator,
as required in this Agreement.
Opinion of Counsel: A written opinion of counsel acceptable to the Trustee
if such opinion is delivered to the Trustee, or acceptable to the Securities
Administrator if such opinion is delivered to the Securities Administrator, who
may be counsel for the Depositor or the Master Servicer, except that any opinion
of counsel relating to the qualification of any REMIC created hereunder as a
REMIC 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 Subordinated Certificates, the corresponding percentage described below, as
of the Closing Date:
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Class X-B-1 3.55%
Class X-B-2 2.64%
Class X-B-3 2.13%
Class X-B-4 1.12%
Class X-B-5 0.71%
Class X-B-6 N/A
Class 4-B-1 2.12%
Class 4-B-2 1.41%
Class 4-B-3 1.01%
Class 4-B-4 0.55%
Class 4-B-5 0.20%
Class 4-B-6 N/A
Original Subordinate Principal Balance: With respect to the Class X-B
Certificates, $21,397,456 and with respect to the Class 4-B Certificates,
$12,217,657.
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 Sections 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: With respect to each Distribution Date and any Class of
interest-bearing Certificates and the IO Components, the per annum rate set
forth or described in the Preliminary Statement. With respect to each
Distribution Date and the Uncertificated Lower-Tier Regular Interests, the
Uncertificated Lower-Tier REMIC Pass-Through Rate. With respect to each
Distribution Date and the Upper-Tier Regular Interests, the Uncertificated
Upper-Tier REMIC Pass-Through Rate.
Paying Agent: As defined in Section 9.13.
Percentage Interest: As to any Certificate, the percentage obtained by
dividing the Denomination of such Certificate by the Initial Class Certificate
Balance or Initial Notional Amount of the Class of which such Certificate is a
part.
Periodic Advance: With respect to each Servicer, shall have the meaning
given to term "Monthly Advance" in the applicable Servicing Agreement.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by the
United States, Xxxxxxx Mac, Xxxxxx Xxx or any agency or instrumentality of
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the United States when such obligations are backed by the full faith and
credit of the United States; provided that such obligations of Xxxxxxx Mac
or Xxxxxx Xxx 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 "F-1" by Fitch and "A-1+" by S & P;
(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 "F-1" by Fitch and "A-1+" by S & P;
(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 "F-1" by Fitch and
"A-1+" by S & P;
(v) investments in money market funds (including funds of the
Securities Administrator or its affiliates, or funds for which an affiliate
of the Securities Administrator acts as advisor, as well as funds for which
the Securities Administrator and its affiliates may receive compensation)
rated "AAA" by Fitch (if so rated) and "AAAm G" by S&P 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
Master Servicer or Securities Administrator, as the case may be, will not
affect the qualification of any REMIC created under this Agreement as a
REMIC;
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
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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 U.S. Person, and (vi)
any other Person so designated by the Depositor 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 X-B-4, Class X-B-5, Class
X-B-6, Class 4-B-4, Class 4-B-5 and Class 4-B-6 Certificates.
Plan: As defined in Section 6.02(e).
PO Components: The Class 1-X-PO, Class 2-X-PO and Class 3-X-PO Components.
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 5.04(b) less the sum of (a) the PO Recoveries with
respect to Loan Group 1 (in the case of the Class 1-X-PO Component), Loan Group
2 (in the case of the Class 2-X-PO Component) or Loan Group 3 (in the case of
the Class 3-X-PO Component) 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 4-PO Certificates,
the amount by which the Class Certificate Balance of the Class 4-PO Certificates
will be reduced on such Distribution Date, or has been reduced on prior
Distribution Dates as a result of Section 5.04(b) less the sum of (a) the PO
Recoveries with respect to Loan Group 4 and (b) the amounts distributed to the
Class 4-PO Certificates pursuant to Section 5.02(a)(iii) 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 any Loan Group, the
sum of (i) the applicable PO Percentage of (a) the principal portion of each
Monthly Payment (net of unreimbursed Advances and other amounts as to which the
related Servicer is entitled to be reimbursed pursuant to the applicable
Servicing Agreement) due on each Discount Mortgage Loan in such Loan Group on
the related Due Date; (b) the Stated Principal Balance, as of the date of
repurchase, of (i) each Discount Mortgage Loan in such Loan Group that was
repurchased by a Servicer pursuant to the applicable Servicing Agreement as of
such Distribution Date, (ii) each Discount Mortgage Loan in such Loan Group
repurchased by the Sponsor pursuant to the Mortgage Loan Purchase Agreement or a
Purchase Obligation as of such Distribution Date, (iii) each Discount Mortgage
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Loan in such Loan Group repurchased by the Depositor pursuant to Section 2.04,
(iv) each Discount Mortgage Loan in such Loan Group purchased by the Master
Servicer pursuant to Section 10.01 and (v) each Discount Mortgage Loan in such
Loan Group purchased by the related originator as set forth in Section 2.02; (c)
any Substitution Adjustment Amount (net of unreimbursed Advances and other
amounts as to which the related Servicer is entitled to be reimbursed pursuant
to the applicable Servicing Agreement) in connection with any Discount Mortgage
Loan that is 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 Discount Mortgage Loans in such Loan Group that are not yet
Liquidated Mortgage Loans received by a Servicer during the related Prepayment
Period; (e) with respect to each Discount Mortgage Loan in such Loan Group that
became a Liquidated Mortgage Loan during the related Prepayment Period, the
amount of Liquidation Proceeds (excluding Excess Proceeds) allocable to
principal received by a Servicer with respect to such Discount Mortgage Loan
during such period; and (f) all Principal Prepayments on the Discount Mortgage
Loans in such Loan Group received by a Servicer during the related Prepayment
Period; and (ii) the PO Recovery with respect to such Loan Group for such
Distribution Date.
PO Recovery: As to any Distribution Date and any Loan Group, the lesser of
(a) the PO Deferred Amount for the PO Component of the Related Group or the
Class 4-PO Certificates, as the case may be, for such Distribution Date and (b)
an amount equal to the sum, as to each Discount 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 received during the related Prepayment
Period.
Pool Distribution Amount: As to any Distribution Date and each Loan Group,
an amount equal to the sum of, with respect to each Mortgage Loan contributing
to, or in, such Loan Group (based in the case of the Apportioned Mortgage Loans
on (I) the Applicable Percentage for such Mortgage Loan of the following amounts
relating to principal on such Mortgage Loan and (II) the Designated Interest
Percentage of the following amounts relating to interest on such Mortgage Loan),
the excess of (a) the sum of (i) the aggregate of (A) the interest portion of
any Monthly Payment on a Mortgage Loan contributing to or in such Loan Group
(net of the related Administrative Fees) and the principal portion of any
Monthly Payment on a Mortgage Loan contributing to or 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 and (B) all Periodic Advances
made by a Servicer (or the Master Servicer or the Trustee, as applicable) in
respect of such Loan Group and payments of Compensating Interest allocable to
such Loan Group made by the applicable Servicer in respect of such Loan Group
and such Distribution Date deposited to the Master Servicer Custodial Account
pursuant to Section 3.09(d)(vi); (ii) all Liquidation Proceeds (other than
Excess Proceeds) received on the Mortgage Loans contributing to or in such Loan
Group during the related Prepayment Period and deposited to the Master Servicer
Custodial Account pursuant to Section 3.09(d)(iii); (iii) all Principal
Prepayments received on the Mortgage Loans contributing to or in such Loan Group
during the related Prepayment Period and deposited to the Master Servicer
Custodial Account pursuant to Section 3.09(d)(i) during such period; (iv) in
connection with any Mortgage Loans contributing to or in such Loan Group that
are Defective Mortgage Loans, the aggregate of the Purchase Prices and
Substitution Adjustment Amounts remitted on the related Remittance Date pursuant
to Section 3.09(d)(vii); (v) any other amounts in the Master Servicer Custodial
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Account deposited therein pursuant to Section 3.09(d)(iv), (v), (viii) 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; and (vii) any Non-PO
Recovery with respect to such Distribution Date and Loan Group over (b) any
amounts permitted to be withdrawn from the Master Servicer Custodial Account
pursuant to clauses (i) through (viii), inclusive, of Section 3.11 in respect of
such Loan Group.
Pool Principal Balance: As to any Distribution Date and any Loan Group, the
sum of the Applicable Percentages of the Stated Principal Balances of all
Mortgage Loans contributing to, or 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 Principal Balance (Non-PO Portion): As to any Distribution Date and
Loan Group, the sum of the product, for each Mortgage Loan contributing to, or
in, such Loan Group, of (a) the Non-PO Percentage of such Mortgage Loan and (b)
the Applicable Percentage of 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 2 Premium Mortgage Loan, Group 3 Premium
Mortgage Loan or Group 4 Premium Mortgage Loan.
Prepayment Interest Shortfall: As to any Distribution Date and each
Mortgage Loan subject to a Principal Prepayment received during the related
Prepayment Period, the amount, if any, by which one month's interest at the
related Net Mortgage Interest Rate on such Principal Prepayment exceeds the
amount of interest paid in connection with such Principal Prepayment.
Prepayment Period: With respect to any Distribution Date, the calendar
month preceding the calendar month in which such Distribution Date occurs.
Primary Mortgage 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 Xxxxxx Xxx or Xxxxxxx Mac.
Principal Only Certificates: Any Class of Certificates entitled to
distributions of principal, but to no distributions of interest. The Class X-PO
and Class 4-PO Certificates are the only Classes of Principal Only Certificates.
Principal Prepayment: With respect to each Mortgage Loan, any payment or
other recovery of principal on such 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.
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Private Certificates: The Class X-B-4, Class X-B-5, Class X-B-6, Class
4-B-4, Class 4-B-5 and Class 4-B-6 Certificates.
Pro Rata Share: As to any Distribution Date and (i) any Class of Class X-B
Certificates that is not a Restricted Class, the portion of the Subordinate
Principal Distribution Amounts for the Crossed Loan Group allocable to such
Class, equal to the product of the Subordinate Principal Distribution Amounts
for the Crossed Loan Group 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 that are not Restricted Classes and (ii) any Class of Class 4-B
Certificates that is not a Restricted Class, the portion of the Subordinate
Principal Distribution Amount for Loan Group 4 allocable to such Class, equal to
the product of the Subordinate Principal Distribution Amount for Loan Group 4
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 4-B Certificates that are not Restricted
Classes. The Pro Rata Share of a Restricted Class shall be 0%.
Purchase Obligation: An obligation of the Sponsor or the Depositor to
purchase Mortgage Loans under the circumstances and in the manner provided in
Section 2.02 or 2.04.
Purchase Price: With respect to each Mortgage Loan that was a Defective
Mortgage Loan repurchased on any date pursuant to Sections 2.02 or 2.04, an
amount equal to the sum of (i) the Stated Principal Balance of the Mortgage
Loan, (ii) interest on such Stated Principal Balance at the Mortgage Interest
Rate from the date on which interest has last been paid and distributed through
the last day of the month in which such repurchase takes place and (iii) any
costs and damages incurred by the Trust in connection with any violation by such
repurchased Mortgage Loan of any predatory or abusive lending law, less (x)
amounts received or advanced in respect of such repurchased Mortgage Loan which
are being held in the applicable Servicer Custodial Account for distribution in
the month of repurchase and (y) if the Person repurchasing such Mortgage Loan is
servicing such Mortgage Loan under the related Servicing Agreement, the related
Servicing Fee for such Mortgage Loan.
Rating Agency: Each of Fitch and S&P. If any 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, the Master Servicer and the Securities Administrator. 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
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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 any Distribution Date and each Mortgage Loan that (i)
has become the subject of a Debt Service Reduction, the amount, if any, by which
the principal portion of the related Monthly Payment has been reduced or (ii)
has become the subject of a Servicer Modification, any reduction in the
principal balance thereof resulting from such Servicer Modification.
Recognition Agreement: With respect to a Cooperative Loan, the recognition
agreement between the Cooperative and the originator of such Cooperative Loan.
Record Date: With respect to the Certificates, the last Business Day of the
month immediately preceding the month in which the related Distribution Date
occurs.
Recovery: As to any Distribution Date and Loan Group, the sum, with respect
to each Mortgage Loan contributing to, or in, such Loan Group, of the product of
(a) the Applicable Percentage for such Mortgage Loan and (b) amounts received
during the calendar month preceding the month of such Distribution Date on such
Mortgage Loan subsequent to such Mortgage Loan being determined to be a
Liquidated Mortgage Loan.
Regular Interest: Any of the Uncertificated Lower-Tier Regular Interests
and the Upper-Tier Regular Interests.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation AB),
17 C.F.R. ss.ss.229.1100 - 229.1123, as such may be amended from time to time,
and subject to such clarification and interpretation as have been provided by
the Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506 - 1,631 (Jan. 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
Reimbursement Amount: As defined in Section 2.02.
Related Group: For Loan Group 1, Group 1; for Loan Group 2, Group 2; for
Loan Group 3, Group 3; for Loan Group 4, Group 4, and for the Crossed Loan
Groups, Groups 1, 2 and 3.
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, and for Groups 1, 2 and 3,
the Crossed Loan Groups.
Relevant Servicing Criteria: The Servicing Criteria applicable to the
various parties, as set forth on Exhibit N attached hereto. The Servicing
Criteria applicable to each Servicer shall be as set forth on the applicable
Servicing Agreement. For clarification purposes, multiple parties can have
responsibility for the same Relevant Servicing Criteria. With respect to a
Servicing Function Participant engaged by the Master Servicer, the Securities
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Administrator, the Custodian or any Servicer, the term "Relevant Servicing
Criteria" may refer to a portion of the Relevant Servicing Criteria applicable
to such parties.
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 related Collection Period 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 such Collection
Period 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 related Collection Period.
REMIC: A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
REMIC Certificate Maturity Date: As set forth 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: The 18th day of each month beginning in October 2007 (or,
if such day is not a Business Day, the preceding Business Day).
REO Disposition Period: As defined in Section 3.15.
REO Proceeds: Proceeds, net of any related expenses of a 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 a Servicer servicing the
related Mortgage Loan on behalf of the Trust through foreclosure or deed-in-lieu
of foreclosure in connection with a defaulted Mortgage Loan.
Reportable Event: As defined in Section 3.22(d).
Reporting Servicer: As defined in Section 3.22(c)(i).
Request for Release: The Request for Release submitted by a Servicer to the
Custodian on behalf of the Trustee substantially in the form attached hereto as
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.
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Residual Certificate: The Class 1-A-R Certificate.
Responsible Officer: When used with respect to the Trustee or the
Securities Administrator, any officer of the Corporate Trust Department of the
Trustee or the Securities Administrator, as applicable, 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 or Securities Administrator, as applicable, customarily performing
functions similar to those performed by any of the above designated officers and
having direct 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 XxXxxx-Xxxx Companies, Inc., or
any successor thereto.
Xxxxxxxx-Xxxxx Certification: As defined in Section 3.22(e).
Securities Administrator: Xxxxx Fargo Bank, N.A., and its
successors-in-interest and, if a successor securities administrator is appointed
hereunder, such successor, as securities administrator.
Security Agreement: With respect to a Cooperative Loan, the agreement or
mortgage creating a security interest in favor of the originator of the
Cooperative Loan in the related Cooperative Stock.
Senior Certificates: The Class 1-A-R, Class 1-A-1, Class 1-A-2, Class
2-A-1, Class 2-A-2, Class 2-A-3, Class 3-A-1, Class 3-A-2, Class 4-A-1, Class
4-A-2, Class 4-A-3, Class X-IO, Class X-PO, Class 4-IO and Class 4-PO
Certificates.
Senior Credit Support Depletion Date: With respect to (i) the Crossed
Groups, the date on which the aggregate Class Certificate Balance of the Class
X-B Certificates has been reduced to zero, and (ii) Group 4, the date on which
the aggregate Class Certificate Balance of the Class 4-B Certificates has been
reduced to zero.
Senior Non-PO Certificates: The Class 1-A-R, Class 1-A-1, Class 1-A-2,
Class 2-A-1, Class 2-A-2, Class 2-A-3, Class 3-A-1, Class 3-A-2, Class 4-A-1,
Class 4-A-2, Class 4-A-3, Class X-IO and Class 4-IO Certificates.
Senior Percentage: With respect to any Distribution Date and each Loan
Group, the percentage, carried to six places rounded up, obtained by dividing
(i) the sum of the Class Certificate Balances of the Senior Non-PO Certificates
of the Related Group by (ii) the Pool Principal Balance (Non-PO Portion) of such
Loan Group for such Distribution Date.
Senior Prepayment Percentage: For any Distribution Date and each Loan Group
during the five (5) years beginning on the first Distribution Date, 100%. The
Senior Prepayment Percentage for any Distribution Date and each Loan Group
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
(1st) year thereafter, the Senior Percentage for such Loan Group plus 70% of the
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Subordinate Percentage for such Loan Group for such Distribution Date; for any
Distribution Date in the second (2nd) 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 (3rd) 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 (4th) 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 (5th) or
later years thereafter, the Senior Percentage for such Loan Group for such
Distribution Date (unless on any of the foregoing Distribution Dates, (a) the
Aggregate Crossed Senior Percentage for such Distribution Date exceeds the
Aggregate Crossed Senior Percentage calculated as of the Closing Date, in which
case the Senior Prepayment Percentage for each Crossed Loan Group for such
Distribution Date will once again equal 100% or (b) with respect to Loan Group
4, the Senior Percentage for Loan Group 4 for such Distribution Date exceeds the
Senior Percentage for Loan Group 4 calculated as of the Closing Date, in which
case the Senior Prepayment Percentage for Loan Group 4 for such Distribution
Date will once again equal 100%. Notwithstanding the foregoing, no decrease in
the Senior Prepayment Percentage will occur unless both of the Senior Step Down
Conditions are satisfied.
Senior Principal Distribution Amount: As to any Distribution Date and each
Loan Group, the sum of (a) 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 (b) 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 as to which
any decrease in the Senior Prepayment Percentage for a Crossed Loan Group or
Loan Group 4 applies, (i) the outstanding principal balance of all Mortgage
Loans in the Crossed Loan Groups or Loan Group 4, as applicable (including, for
this purpose, any such Mortgage Loans in foreclosure, any related REO Property
and any such 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 (in the case of a Crossed Loan Group) or the
aggregate Class Certificate Balance of the Class 4-B Certificates (in the case
of Loan Group 4), is not equal to or greater than 50% or (ii) cumulative
Realized Losses with respect to the Crossed Loan Group Mortgage Loans or Group 4
Mortgage Loans as of the applicable Distribution Date do not exceed the
percentage of the applicable Original Subordinate Principal Balance set forth
below:
Percentage of
Original Subordinate
Distribution Date Occurring Principal Balance
----------------------------------------- ----------------------------------
October 2012 through September 2013 30%
October 2013 through September 2014 35%
October 2014 through September 2015 40%
October 2015 through September 2016 45%
October 2016 and thereafter 50%
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Servicer: Any of BANA, SunTrust and WMB, each in their capacity as servicer
or originator of the Mortgage Loans, or any successor servicer appointed as
herein provided.
Servicer Custodial Accounts: The separate accounts created and maintained
by each of the Servicers pursuant to the applicable Servicing Agreement.
Servicer Modification: A modification to the terms of a Mortgage Loan, in
accordance with the terms of the applicable Servicing Agreement, as to which the
Mortgagor is in default or as to which, in the judgment of the Servicer, default
is reasonably foreseeable.
Servicing Advance: With respect to each Servicer, shall have the meaning
given to the term "Servicing Advances" in the applicable Servicing Agreement.
Servicing Agreements: Any of the BANA Servicing Agreement, the SunTrust
Servicing Agreement and the WMB Servicing Agreement.
Servicing Criteria: The criteria set forth in paragraph (d) of Item 1122 of
Regulation AB, as such may be amended from time to time
Servicing Fee: With respect to each Servicer, as defined in the applicable
Servicing Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan, as defined in the
applicable Servicing Agreement.
Servicing File: With respect to each Mortgage Loan, as defined in the
applicable Servicing Agreement.
Servicing Function Participant: Any Subcontractor utilized by the Master
Servicer, the Securities Administrator or the Custodian that is "participating
in the servicing function" within the meaning of Item 1122 of Regulation AB.
Servicing Officer: With respect to each Servicer, as defined in the related
Servicing Agreement.
Servicing Transfer Costs: All reasonable costs and expenses of the Master
Servicer or the Trustee, as applicable, related to any termination of a
Servicer, appointment of a successor Servicer or the transfer and assumption of
servicing by the Master Servicer or the Trustee, as applicable, with respect to
any Servicing Agreement (including, without limitation, (i) all legal costs and
expenses and all due diligence costs and expenses associated with an evaluation
of the potential termination of the Servicer as a result of an event of default
by such Servicer and (ii) 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 Master Servicer or the Trustee, as
applicable, to correct any errors or insufficiencies in the servicing data or
otherwise to enable the Master Servicer or the Trustee, as applicable, to
service the Mortgage Loans properly and effectively).
Similar Law: As defined in Section 6.02(e).
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Sponsor: Bank of America, National Association, a national banking
association, or its successor in interest, as seller of the Mortgage Loans under
the Mortgage Loan Purchase Agreement.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the unpaid
principal balance of such Mortgage Loan as of 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.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect to
Mortgage Loans under the direction or authority of the Master Servicer, the
Securities Administrator or the Custodian.
Subgroup 2A Mortgage Loans: The Mortgage Loans in Loan Group 2 that also
contribute to Loan Group 1.
Subgroup 2B Mortgage Loans: The Mortgage Loans in Loan Group 2 that do not
contribute to Loan Group 1.
Subordinate Balance Ratio: As of any date of determination and the Crossed
Loan Groups, the ratio among the principal balances of the Class 1-LS Interest,
Class 2-LS Interest and Class 3-LS Interest equal to the ratio among the Group
Subordinate Amounts of Loan Group 1, Loan Group 2 and Loan Group 3.
Subordinate Percentage: As of any Distribution Date and each Loan Group,
100% minus the Senior Percentage for such Loan Group for such Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date and each
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 each Loan Group, an amount equal to the sum of (a) the Subordinate
Percentage for such Loan Group of the 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 (b) the Subordinate Prepayment Percentage for such
Loan Group of the 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.
Subordinated Certificates: The 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 4-B-1, Class 4-B-2, Class 4-B-3, Class
4-B-4, Class 4-B-5 and Class 4-B-6 Certificates, each of which represents the
corresponding Upper-Tier Regular Interest for purposes of the REMIC Provisions.
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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 the Stated Principal
Balance of the Defective Mortgage Loan; (ii) have a Net Mortgage Interest Rate
not less than, and not more than 2% greater than that of the Defective Mortgage
Loan; (iii) be of the same type as the Defective Mortgage Loan; (iv) have a
Loan-to-Value Ratio not higher than that of the Defective Mortgage Loan; (v)
have a credit score not less than that of the Defective Mortgage Loan; (vi) have
a credit grade not lower in quality than that of the Defective Mortgage Loan;
(vii) have a remaining term to maturity not greater than (and not more than one
(1) year less than) that of the Defective Mortgage Loan; (viii) have the same
lien priority as the Defective Mortgage Loan; and (ix) comply with each Mortgage
Loan representation and warranty set forth in the Mortgage Loan Purchase
Agreement, the related underlying sale agreement, if applicable, the applicable
Servicing Agreement, if any, and this Agreement. 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.
Notwithstanding any provision herein to the contrary, a Substitute Mortgage Loan
shall be deemed to have the same Applicable Percentage as that of the Defective
Mortgage Loan for which it was substituted.
Substitution Adjustment Amount: As defined in Section 2.02.
SunTrust: SunTrust Mortgage, Inc., in its capacity as servicer under the
SunTrust Servicing Agreement.
SunTrust Servicing Agreement: Collectively, (i) the Flow Sale and Servicing
Agreement, dated as of February 1, 2004, by and between BANA (as successor in
interest to BAMCC), as purchaser, and SunTrust, as seller, (ii) that certain
Amendment No. 1, dated as of June 1, 2004, by and between BANA and SunTrust,
(iii) that certain Master Assignment, Assumption and Recognition Agreement,
dated September 1, 2004, by and among BAMCC, SunTrust, BANA and Wachovia Bank,
National Association, (iv) that certain Amendment No. 2, dated as of November 1,
2004, by and between BANA and SunTrust, (v) that certain Regulation AB
Compliance Addendum to the Flow Sale and Servicing Agreement, dated as of
January 1, 2006, by and between BANA and SunTrust, and (vi) the Assignment,
Assumption and Recognition Agreement, dated September 27, 2007, by and among
BANA, the Depositor, the Trustee and SunTrust.
Tax Matters Person: Any person designated as "tax matters person" in
accordance with Section 5.07 and the manner provided under Treasury Regulation
ss. 1.860F-4(d) and Treasury Regulation ss. 301.6231(a)(7)-1.
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, which shall be named the "Banc
of America Funding 0000-0 Xxxxx."
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Xxxxx Xxxxxx: The segregated pool of assets subject hereto, constituting
the primary trust created hereby and to be administered hereunder, with respect
to a portion of which multiple REMIC elections are to be made as specified
herein, such entire Trust Estate consisting of: (i) such Mortgage Loans as from
time to time are subject to this Agreement, together with the Mortgage Files
relating thereto, and together with all collections thereon and proceeds
thereof, (ii) any REO Property, together with all collections thereon and
proceeds thereof, (iii) the Trustee's rights with respect to the Mortgage Loans
under all insurance policies required to be maintained pursuant to this
Agreement and any proceeds thereof, (iv) the Depositor's rights under the
Servicing Agreements and the Mortgage Loan Purchase Agreement (including any
security interest created thereby); (v) the right to receive BPP Mortgage Loan
Payments; and (vi) the Servicer Custodial Accounts, the Master Servicer
Custodial Account and the Certificate Account, and such assets that are
deposited therein from time to time and any investments thereof, together with
any and all income, proceeds and payments with respect thereto.
Trustee: U.S. Bank National Association, and its successors-in-interest
and, if a successor trustee is appointed hereunder, such successor, as trustee.
Uncertificated Accrued Interest: With respect to each interest-bearing
Regular Interest on each Distribution Date, an amount equal to one month's
interest at the related Pass-Through Rate on the Uncertificated Balance or
Notional Amount of such Regular Interest. In the case of each Regular Interest,
Uncertificated Accrued Interest will be reduced by any Non-Supported Interest
Shortfalls and any Relief Act Reductions, allocated to such Regular Interest as
provided in Section 5.02.
Uncertificated Balance: With respect to each Regular Interest, the amount
of such Regular Interest outstanding as of any date of determination. As of the
Closing Date, the Uncertificated Balance of each Regular Interest shall equal
the amount set forth in the Preliminary Statement hereto as its initial
Uncertificated Balance. On each Distribution Date, the Uncertificated Balance of
each Regular Interest shall be reduced by all distributions of principal made on
such Regular Interest on such Distribution Date pursuant to Section 5.02 and, if
and to the extent necessary and appropriate, shall be further reduced on such
Distribution Date by Realized Losses as provided in Section 5.04. The
Uncertificated Balance of each Regular Interest shall never be less than zero.
Uncertificated Lower-Tier Interest: The Uncertificated Lower-Tier Regular
Interests and the Class LR interest, which represents the sole class of residual
interest in the Lower-Tier REMIC.
Uncertificated Lower-Tier Regular Interest: A regular interest in the
Lower-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 hereof. Any of the
Class 1-L Interest, Class 1-LS Interest, Class 1-LPO Interest, Class 2-L
Interest, Class 2-LS Interest, Class 2-LPO Interest, Class 2-LIO Interest, Class
3-L Interest, Class 3-LS Interest, Class 3-LPO Interest, Class 3-LIO Interest,
Class 4-L Interest, Class 4-LPO Interest and Class 4-LIO Interest are
Uncertificated Lower-Tier Regular Interests.
Uncertificated Lower-Tier REMIC Pass-Through Rate: As set forth in the
Preliminary Statement.
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Uncertificated Upper-Tier REMIC Pass-Through Rate: As set forth in the
Preliminary Statement.
Undercollateralized Amount: As defined in Section 5.02(b)(iv).
Undercollateralized Group: As defined in Section 5.02(b)(iv).
Underwriter's Exemption: An exemption listed in, and as amended by,
Prohibited Transaction Exemption 2007-05, 72 Fed Reg 13130 (March 20, 2007) and
any successor exemption.
Uninsured Cause: Any cause of damage to a Mortgaged Property, the cost of
the complete restoration of which is not fully reimbursable under the hazard
insurance policies required to be maintained pursuant to Section 3.12.
Upper-Tier Certificate Sub-Account: The sub-account of the Certificate
Account designated by the Securities Administrator pursuant to Section 3.09(h).
Upper-Tier Regular Interest: Any of the regular interests in the Upper-Tier
REMIC listed in the Preliminary Statement.
Upper-Tier REMIC: As defined in the Preliminary Statement, the assets of
which consist of the Uncertificated Lower-Tier Regular Interests and such
amounts as shall be deemed 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) 97%
of all Voting Rights shall be allocated to the Holders of the Senior
Certificates (other than the Class 1-A-R, Class X-IO and Class 4-IO
Certificates) and the Subordinated Certificates in proportion to the Certificate
Balances of their respective Certificates, (b) 1% of all Voting Rights shall be
allocated to the Holder of the Class 1-A-R Certificate, (c) 1% of all Voting
Rights shall be allocated to the Holders of the Class X-IO Certificates and (d)
1% of all Voting Rights shall be allocated to the Holders of the Class 4-IO
Certificates.
WMB: Washington Mutual Bank, in its capacity as servicer under the WMB
Servicing Agreement.
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WMB Servicing Agreement: Collectively, (i) that certain Mortgage Loan
Purchase and Sale Agreement (Amended and Restated), dated as of July 1, 2003, by
and among Washington Mutual Bank (formerly known as Washington Mutual Bank,
FA),Washington Mutual Bank fsb, WMB and BANA (as successor in interest to
BAMCC), as purchaser (as amended by (a) that certain Master Assignment,
Assumption and Recognition Agreement dated as of July 1, 2004, by and among
BAMCC, BANA and WMB and (b) that certain Regulation AB Amendment to the Mortgage
Loan Purchase and Sale Agreement, dated as of January 1, 2006, by and among
Washington Mutual Bank fsb, WMB and BANA), (ii) that certain Servicing Agreement
(Amended and Restated), dated as of July 1, 2003, by and between BANA and WMB,
as servicer (as amended by (a) that certain Master Assignment, Assumption and
Recognition Agreement dated as of July 1, 2004, by and among BAMCC, BANA and WMB
and (b) that certain Regulation AB Amendment to the Servicing Agreement, dated
as of January 1, 2006, by and between WMB and BANA); and (iii) that certain
Assignment, Assumption and Recognition Agreement, dated September 27, 2007, by
and among BANA, the Depositor, the Trustee and WMB.
Withdrawal Date: The Business Day prior to related Remittance Date.
Section 1.02 Interest Calculations.
All calculations of interest will be made on a 360-day year consisting of
twelve (12) 30-day months. All dollar amounts calculated hereunder shall be
rounded to the nearest xxxxx with one-half of one xxxxx 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 and the related Mortgage Files, 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) and the Depositor's rights under the BANA Servicing Agreement and
under the Mortgage Loan Purchase Agreement, including the rights of the
Depositor as assignee of the Sponsor with respect to the Sponsor's rights under
the Servicing Agreements (other than the BANA Servicing Agreement) and the
underlying sale agreements. 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
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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, (iii) the Massachusetts Predatory Home Loan Practices
Act effective November 7, 2004 or (iv) the Indiana Home Loan Practices Act,
effective January 1, 2005.
(b) In connection with such transfer and assignment, the Depositor has
delivered or caused to be delivered to the Trustee, or a Custodian on behalf of
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 U.S. Bank National
Association, as trustee for holders of Banc of America Funding Corporation
Mortgage Pass-Through Certificates, Series 2007-8, 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)
and, in the case of any Mortgage Loan originated in the State of New York
documented by a NYCEMA, the NYCEMA, the new Mortgage Note, if applicable,
the consolidated Mortgage Note and the consolidated Mortgage;
(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 applicable Servicer (which may be part of a
blanket certification) 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 "U.S. Bank National Association, as
trustee for the holders of Banc of America Funding Corporation Mortgage
Pass-Through Certificates, Series 2007-8" (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 applicable Servicer (which
may be part of a blanket certification) 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 Master Servicer shall enforce the
obligations of the applicable Servicer to take all actions as are necessary
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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) 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 Cooperative Stock, the
originals of the following documents or instruments:
(A) The Cooperative Stock Certificate;
(B) The stock power executed in blank;
(C) The executed Cooperative 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).
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provided, however, that on the Closing Date, with respect to item (iii), if an
Assignment of Mortgage is required to be recorded as set forth below, the
Depositor has delivered to the Trustee or a Custodian on behalf of the Trustee,
as the case may be, a copy of such Assignment of Mortgage in blank rather than
in the name of the Trustee and has caused the applicable 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, if any, (together with all riders thereto), if applicable,
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, if applicable, has not been delivered to any of the related
Servicer, the Sponsor or the Depositor, as applicable, by the applicable title
insurer, if any, in the case of clause (v) above, the Depositor shall promptly
deliver or cause to be delivered to the Trustee or a Custodian on behalf of the
Trustee, as the case may be, 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 (1) 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 an Officer's Certificate to such effect to the Trustee. The Depositor
shall forward or cause to be forwarded to the Trustee or a Custodian, on behalf
of the Trustee, as the case may be, (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 applicable
Servicer to the Trustee or a Custodian on the Trustee's behalf, as the case may
be. 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 Depositor 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.
With respect to each Mortgage Loan, as promptly as practicable subsequent
to such transfer and assignment, the Master Servicer shall (except for any
Mortgage which has been recorded in the name of MERS or its designee) enforce
the obligations of the related Servicer pursuant to the related Servicing
Agreement to (I) cause each Assignment of Mortgage to be in proper form for
recording in the appropriate public office for real property records within the
time period required in the applicable Servicing Agreement and (II) at the
Depositor's expense, cause to be delivered for recording in the appropriate
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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 related Servicer has not received the information required to prepare such
assignment in recordable form, such 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 accordance with the applicable Servicing
Agreement.
No recording of an Assignment of Mortgage will be required in a state if
either (i) the Depositor furnishes to the Trustee and the Securities
Administrator an unqualified Opinion of Counsel reasonably acceptable to the
Trustee and the Securities Administrator 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.
Exhibit J attached hereto sets forth the list of all states where recordation is
required by any Rating Agency to obtain the initial ratings of the Certificates.
The Securities Administrator and the Trustee may rely and shall be protected in
relying upon the information contained in such Exhibit J.
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 a Custodian on the Trustee's behalf, will cause the applicable
Servicer to remit to the Master Servicer for deposit in the Master Servicer
Custodial Account the portion of such payment that is required to be deposited
in the such account pursuant to Section 3.09.
Section 2.02 Acceptance by the Trustee or Custodian of the Mortgage Loans.
Subject to the provisions of the following paragraph, the Trustee declares
that it, or a Custodian as its agent, will hold the documents referred to in
Section 2.01 and the other documents delivered to it or a Custodian as its
agent, as the case may be, constituting the Mortgage Files, and that it will
hold such other assets as are included in the Trust Estate delivered to it, 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 a Custodian to deliver to the Depositor and the Master
Servicer a certification in the form attached hereto as Exhibit K (the "Initial
Certification") to the effect that, except as may be specified in a list of
exceptions attached thereto, such Person 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 a Custodian, on behalf of the Trustee, to review,
the Mortgage Files in such Person's possession, and shall deliver to the
Depositor and the Master Servicer a certification in the form attached hereto as
Exhibit L (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). In
performing any such review, the Trustee or a Custodian, as the case may be, may
conclusively rely on the purported genuineness of any such document and any
signature thereon.
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If, in the course of such review, the Trustee or a 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 or if the
Depositor, the Master Servicer, the Trustee, a Custodian or the Securities
Administrator discovers a breach by a Servicer, an originator, the Sponsor or
the Depositor of any representation, warranty or covenant under the Servicing
Agreements, an underlying sale agreement, the Mortgage Loan Purchase Agreement
or this Agreement, as the case may be, in respect of any Mortgage Loan and such
breach materially adversely affects the interest of the Certificateholders in
the related Mortgage Loan (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), then such party shall promptly so notify
the Master Servicer, the Sponsor, the applicable Servicer, the applicable
originator, the Securities Administrator, the Trustee and the Depositor of such
failure to meet the requirements of Section 2.01 or of such breach and request
that the applicable Servicer, the applicable originator, the Sponsor or the
Depositor, as applicable, deliver such missing documentation or cure such defect
or breach within 90 days of its discovery or its receipt of notice of any such
failure to meet the requirements of Section 2.01 or of such breach. If the
Trustee receives written notice that the Depositor, the Sponsor, the applicable
originator or the applicable Servicer, as the case may be, has not delivered
such missing document or cured such defect or breach in all material respects
during such period, the Trustee, on behalf of the Trust, shall enforce the
applicable Servicer's, the applicable originator's, the Sponsor's or the
Depositor's obligation, as the case may be, under the applicable Servicing
Agreement, the applicable underlying sale agreement, the Mortgage Loan Purchase
Agreement or this Agreement, as the case may be, and cause the applicable
Servicer, the applicable originator, the Sponsor or the Depositor, as the case
may be, to 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 Trust at the Purchase 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 must occur
within 90 days of when such defect was discovered if such defect will cause a
Mortgage Loan not to be a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code.
Notwithstanding any contrary provision of this Agreement, no substitution
pursuant to this Section 2.02 shall be made more than 90 days after the Closing
Date unless the Depositor delivers to the Securities Administrator an Opinion of
Counsel, which Opinion of Counsel shall not be at the expense of any of the
Trustee, the Securities Administrator or the Trust Estate, addressed to the
Trustee and the Securities Administrator, to the effect that such substitution
will not (i) result in the imposition of the tax on "prohibited transactions" on
any REMIC created hereunder or contributions after the Start-up Day, as defined
in Sections 860F(a)(2) and 860G(d) of the Code, respectively or (ii) cause any
REMIC created hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding.
It is understood that the scope of the Trustee's review (or a Custodian's
review on its behalf) 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 applicable Mortgage Loans
identified in the related Mortgage Loan Schedule based solely upon the review of
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items (i) and (xi) in the definition of Mortgage Loan Schedule. Neither the
Trustee nor any 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.
If the Trustee receives written notice from the Depositor, the Master
Servicer or the Securities Administrator of a breach of any representation or
warranty of a Servicer, an originator or the Sponsor, the Trustee, on behalf of
the Trust, shall enforce the rights of the Trust under the Servicing Agreements,
the underlying sale agreements, the Mortgage Loan Purchase Agreement and this
Agreement for the benefit of the Certificateholders. If the Trustee receives
written notice from the Depositor, the Master Servicer or the Securities
Administrator of a breach of the representations or warranties with respect to a
Mortgage Loan set forth in a Servicing Agreement or an underlying sale
agreement, the Trustee, on behalf of the Trust, shall enforce the right of the
Trust to be indemnified for such breach of representation or warranty. In
addition, if the Trustee receives written notice from the Depositor, the Master
Servicer or the Securities Administrator of a breach of a representation with
respect to a Mortgage Loan set forth in clauses (k) or (p) of paragraph 3 or
clauses (f), (nn) and (oo) of paragraph 4 of the Mortgage Loan Purchase
Agreement that occurs as a result of a violation of an applicable predatory or
abusive lending law, the Trustee, on behalf of the Trust, shall enforce the
right of the Trust to reimbursement by the Sponsor for all costs or damages
incurred by the Trust as a result of the violation of such law (such amount, the
"Reimbursement Amount"), but in the case of a breach of a representation set
forth in clauses (k) or (p) of paragraph 3 of the Mortgage Loan Purchase
Agreement, only to the extent the applicable Servicer or originator does not so
reimburse the Trust. It is understood and agreed that, except for any
indemnification provided in the Servicing Agreements or underlying sale
agreements and the payment of any Reimbursement Amount, the obligation of a
Servicer, an originator, the Sponsor or the Depositor to cure or to repurchase
any Mortgage Loan as to which a document is missing, a material defect in a
constituent document exists or as to which such a breach has occurred and is
continuing shall constitute the sole remedy against a Servicer, originator, the
Sponsor or the Depositor in respect of such omission, defect or breach available
to the Trustee on behalf of the Trust and the Certificateholders.
With respect to the representations and warranties relating to the Mortgage
Loans set forth in the Mortgage Loan Purchase Agreement that are made to the
best of the Sponsor's knowledge or as to which the Sponsor had no knowledge, if
it is discovered by the Depositor, the Master Servicer or the Trustee that the
substance of such representation or warranty is inaccurate and such inaccuracy
materially and adversely affects the interest of the Certificateholders in the
related Mortgage Loan then, notwithstanding the Sponsor's lack of knowledge with
respect to the substance of such representation or warranty being inaccurate at
the time the representation or warranty was made, such inaccuracy shall be
deemed a breach of the applicable representation or warranty.
It is understood and agreed that the representations and warranties
relating to the Mortgage Loans set forth in the Mortgage Loan Purchase Agreement
shall survive delivery of the Mortgage Files to the Trustee or a Custodian on
the Trustee's behalf and shall inure to the benefit of the Certificateholders
notwithstanding any restrictive or qualified endorsement or assignment. It is
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understood and agreed that the obligations of the Sponsor set forth in this
Section 2.02 to cure, substitute for or repurchase a Mortgage Loan pursuant to
the Mortgage Loan Purchase Agreement constitute the sole remedies available to
the Certificateholders and to the Trustee on their behalf respecting a breach of
the representations and warranties contained in the Mortgage Loan Purchase
Agreement.
The representations and warranties of each Servicer or originator with
respect to the applicable Mortgage Loans in the related Servicing Agreement or
underlying sale agreement, which have been assigned to the Trustee hereunder,
were made as of the date specified in such Servicing Agreement or underlying
sale agreement, as the case may be. To the extent that any fact, condition or
event with respect to a Mortgage Loan constitutes a breach of both (i) a
representation or warranty of a Servicer or an originator under the related
Servicing Agreement or underlying sale agreement, as the case may be, and (ii) a
representation or warranty of the Sponsor under the Mortgage Loan Purchase
Agreement, the only right or remedy of the Trustee or of any Certificateholder
shall be the Trustee's right, on behalf of the Trust, to enforce the obligations
of such Servicer or originator under any applicable representation or warranty
made by it. It is hereby acknowledged that the Sponsor shall have no obligation
or liability with respect to any breach of a representation or warranty made by
it with respect to the Mortgage Loans if the fact, condition or event
constituting such breach also constitutes a breach of a representation or
warranty made by the applicable Servicer in the applicable Servicing Agreement
or originator in the applicable underlying sale agreement, without regard to
whether such Servicer or originator, as the case may be, fulfills its
contractual obligations in respect of such representation or warranty. It is
hereby further acknowledged that the Depositor shall have no obligation or
liability with respect to any breach of any representation or warranty with
respect to the Mortgage Loans (except as set forth in Section 2.04) under any
circumstances.
With respect to each Substitute Mortgage Loan the applicable Servicer,
originator, the Sponsor or the Depositor, as the case may be, shall deliver to
the Trustee (or a Custodian on behalf of the Trustee), for the benefit of the
Certificateholders, the documents and agreements 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. 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, the Sponsor, a Servicer or an originator has
substituted a Substitute Mortgage Loan.
The Master 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 Master Servicer shall deliver the amended Mortgage Loan
Schedule to the Securities Administrator, the Trustee and any Custodian. Upon
such substitution of a Mortgage Loan by the Depositor, the Sponsor, a Servicer
or an originator, each Substitute Mortgage Loan shall be subject to the terms of
this Agreement in all respects, and the Depositor or the Sponsor, as the case
may be, shall be deemed to have made to the Trustee with respect to such
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Substitute Mortgage Loan, as of the date of substitution, the representations
and warranties made pursuant to paragraph 4 of the Mortgage Loan Purchase
Agreement and the applicable Servicer or originator shall be deemed to have made
to the Trustee with respect to such Substitute Mortgage Loan, as of the date of
substitution, the mortgage loan representations and warranties made pursuant to
the applicable Servicing Agreement or underlying sale agreement, as the case may
be. Upon any such substitution and the deposit to the applicable Master Servicer
Custodial Account of any required Substitution Adjustment Amount (as described
in the next paragraph) and receipt by the Trustee of a Request for Release, the
Trustee shall release, or shall direct a Custodian to release, the Mortgage File
relating to such Defective Mortgage Loan to applicable Person and shall execute
and deliver at such Person's direction such instruments of transfer or
assignment prepared by such Person without recourse, as shall be necessary to
vest title in such Person 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, the Sponsor, a Servicer or an
originator 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 substituted by such Person 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 a Loan Group
substituted by such Person (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
remitted by such Person to the Master Servicer for deposit to the Master
Servicer Custodial Account on or before the 18th day of 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 a Custodian to retain, as
applicable, possession and custody of each Mortgage File in accordance with and
subject to the terms and conditions set forth herein. The Master Servicer shall
cause to be promptly delivered to the Trustee or a Custodian on behalf of the
Trustee, as the case may be, 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 Master Servicer's
possession from time to time.
Neither the Trustee nor any Custodian shall be under any 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 or a Custodian on its behalf, as applicable,
shall only be responsible for confirming that a title search or opinion of
counsel has been provided for such Mortgage Loan.
If a Mortgagor is either (a) sixty (60) days or more delinquent with
respect to the first, second or third Monthly Payment that was due after the
transfer of the related Mortgage Loan to the Sponsor or (b) thirty (30) days or
more delinquent but less than sixty (60) days delinquent with respect to the
first, second or third Monthly Payment that was due after the transfer of the
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related Mortgage Loan to the Sponsor and becomes (60) days or more delinquent
with respect to the fourth through twelfth Monthly Payment that was due after
the transfer of the related Mortgage Loan to the Sponsor under (i) the SunTrust
Servicing Agreement and (ii) the Master Bulk Sale and Interim Servicing
Agreement, dated December 1, 2005, between the Sponsor and Xxxxxx, Xxxx &
Xxxxxxxx Mortgage Corp., the Depositor, upon discovery of any such delinquency,
shall direct the Trustee to enforce the obligation of SunTrust or Xxxxxx, Bean &
Xxxxxxxx Mortgage Corp., as the case may be, to repurchase such Mortgage Loan at
the purchase price set forth in the applicable agreement; provided, however, the
Trustee shall not enforce any such obligation if the applicable purchase price
for such Mortgage Loan would be less than the Purchase Price.
Section 2.03 Representations, Warranties and Covenants of the Master
Servicer.
The Master Servicer hereby makes the following representations and
warranties to the Depositor, the Securities Administrator and the Trustee, as of
the Closing Date:
(i) The Master Servicer is a national banking association duly
chartered and validly existing in good standing under the 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 securing a
Mortgage Loan is located if the laws of such state require licensing or
qualification in order to conduct business of the type conducted by the
Master Servicer. The Master 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
Master 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 Master
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 the
rights of creditors 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 Master Servicer to make this
Agreement valid and binding upon the Master 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 Master 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 Master Servicer and
will not result in the breach of any term or provision of the charter or
by-laws of the Master 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
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or credit agreement or other instrument to which the Master Servicer or its
property is subject, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Master Servicer or its
property is subject.
(iv) There is no action, suit, proceeding or investigation pending or,
to the best knowledge of the Master Servicer, threatened against the Master
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 Master Servicer, or in any material
impairment of the right or ability of the Master 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 Master Servicer
contemplated herein, or which would materially impair the ability of the
Master 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 or a Custodian
on the Trustee's behalf and shall inure to 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) 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.
(ii) As of the Closing Date, the Depositor has transferred all right,
title and interest in the Mortgage Loans to the Trustee on behalf of the
Trust.
(iii) As of the Closing Date, the Depositor has not transferred the
Mortgage Loans to the Trustee on behalf of the Trust with any intent to
hinder, delay or defraud any of its creditors.
(iv) Each Mortgage Loan is a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code and Treasury Regulation ss. 1.860G-2.
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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 a Custodian on the Trustee's behalf and shall inure to
the benefit of the Certificateholders.
Upon discovery by any of the Depositor, the Master Servicer, the Securities
Administrator or the Trustee 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; provided that a
breach of the representation that each Mortgage Loan is 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 Purchase 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 relates to the representation that
each Mortgage Loan is 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. The Purchase Price of any repurchase described
in this paragraph and the Substitution Adjustment Amount, if any, shall be
remitted to the Master Servicer for deposit to the Master 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 Trust and 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 Upper-Tier Regular Interests as
"regular interests" and the Class UR Interest 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
Uncertificated Lower-Tier Regular Interests as classes of "regular interests"
and the Class LR Interest 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.
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 and the 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 and the Lower-Tier REMIC is the Distribution
Date in the month following the maturity date for the Mortgage Loan with the
latest maturity date.
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Section 2.08 Execution and Delivery of Certificates.
(a) The Securities Administrator (i) acknowledges the issuance of and
hereby declares that it holds the Uncertificated Lower-Tier Regular 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 and Uncertificated Lower-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 Lower-Tier Interests, evidence ownership of the entire Trust
Estate.
Section 2.09 Establishment of the Trust.
The Depositor does hereby establish, pursuant to the further provisions of
this Agreement and the laws of the State of New York, an express trust to be
known, for convenience, as "Banc of America Funding 2007-8 Trust" and does
hereby appoint U.S. Bank National Association as Trustee in accordance with the
provisions of this Agreement.
Section 2.10 Purpose and Powers of the Trust.
The purpose of the common law trust, as created hereunder, is to engage in
the following activities:
(a) to acquire and hold the Mortgage Loans and the other assets of the
Trust Estate and the proceeds therefrom;
(b) to issue the Certificates sold to the Depositor in exchange for the
Mortgage Loans;
(c) to make payments on the Certificates;
(d) to engage in those activities that are necessary, suitable or
convenient to accomplish the foregoing or are incidental thereto or connected
therewith; and
(e) subject to compliance with this Agreement, to engage in such other
activities as may be required in connection with conservation of the Trust
Estate and the making of distributions to the Certificateholders.
The trust is hereby authorized to engage in the foregoing activities.
Neither the Trustee nor the Securities Administrator shall cause the trust to
engage in any activity other than in connection with the foregoing or other than
as required or authorized by the terms of this Agreement (or those ancillary
thereto) while any Certificate is outstanding, and this Section 2.10 may not be
amended, without the consent of the Certificateholders evidencing 51% or more of
the aggregate voting rights of the Certificates.
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ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicing of the Mortgage Loans.
For and on behalf of the Certificateholders, the Master Servicer shall
supervise, monitor and oversee the obligations of the Servicers to service and
administer their respective Mortgage Loans in accordance with the terms of the
applicable Servicing Agreement and shall have full power and authority to do any
and all things which it may deem necessary or desirable in connection with such
master servicing and administration. In performing its obligations hereunder,
the Master Servicer shall act in a manner consistent with this Agreement,
subject to the prior sentence, and with Customary Servicing Procedures.
Furthermore, the Master Servicer shall oversee and consult with each Servicer as
necessary from time-to-time to carry out the Master Servicer's obligations
hereunder, shall receive, review and evaluate all reports, information and other
data provided to the Master Servicer by each Servicer and shall cause each
Servicer to perform and observe the covenants, obligations and conditions to be
performed or observed by such Servicer under the applicable Servicing Agreement.
The Master Servicer shall independently and separately monitor each Servicer's
servicing activities with respect to each related Mortgage Loan, reconcile the
results of such monitoring with such information provided in the previous
sentence on a monthly basis and coordinate corrective adjustments to the
Servicers' and the Master Servicer's records, and based on such reconciled and
corrected information, prepare the Master Servicer's Certificate and any other
information and statements required hereunder. The Master Servicer shall
reconcile the results of its Mortgage Loan monitoring with the actual
remittances of the Servicers to the Master Servicer Custodial Account pursuant
to the applicable Servicing Agreements.
Continuously from the date hereof until the termination of the Trust, the
Master Servicer shall enforce the obligations of the Servicers to collect all
payments due under the terms and provisions of the Mortgage Loans when the same
shall become due and payable to the extent such procedures shall be consistent
with the applicable Servicing Agreement.
The relationship of the Master Servicer (and of any successor to the Master
Servicer as master servicer under this Agreement) to the Trustee and the
Securities Administrator 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 Monitoring of Servicers.
(a) The Master Servicer shall be responsible for reporting to the Trustee,
the Securities Administrator and the Depositor the compliance by each Servicer
with its duties under the related Servicing Agreement. In the review of each
Servicer's activities, the Master Servicer may rely upon an officer's
certificate of the Servicer with regard to such Servicer's compliance with the
terms of its Servicing Agreement. In the event that the Master Servicer, in its
judgment, determines that a Servicer should be terminated in accordance with its
Servicing Agreement, or that a notice should be sent pursuant to such Servicing
Agreement with respect to the occurrence of an event that, unless cured, would
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constitute grounds for such termination, the Master Servicer shall notify the
Depositor, the Securities Administrator and the Trustee thereof and the Master
Servicer shall issue such notice or take such other action as it deems
appropriate.
(b) The Master Servicer, for the benefit of the Trust and the
Certificateholders, shall enforce the obligations of each Servicer under the
related Servicing Agreement, and shall, in the event that a Servicer fails to
perform its obligations in accordance with the related Servicing Agreement,
subject to the preceding paragraph, terminate the rights and obligations of such
Servicer thereunder and act as successor Servicer of the related Mortgage Loans
under the applicable Servicing Agreement or cause the Trustee to enter into a
new Servicing Agreement with a successor Servicer selected by the Master
Servicer; provided, however, it is understood and acknowledged by the parties
hereto that there will be a period of transition (not to exceed 90 days) before
the actual servicing functions can be fully transferred to such successor
Servicer. Such enforcement, including, without limitation, the legal prosecution
of claims, termination of Servicing 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 Master Servicer, in its good faith business judgment,
would require were it the owner of the related Mortgage Loans. The Master
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 Loans or (ii) from a specific recovery of costs,
expenses or attorneys fees against the party whom such enforcement is directed,
provided that the Master Servicer and the Trustee, as applicable, shall not be
required to prosecute or defend any legal action except to the extent that the
Master Servicer or the Trustee, as applicable, shall have received reasonable
indemnity for its costs and expenses in pursuing such action.
(c) To the extent that the costs and expenses of the Master Servicer or the
Trustee, as applicable, related to any termination of a Servicer, appointment of
a successor Servicer or the transfer and assumption of servicing by the Master
Servicer or the Trustee, as applicable, with respect to any Servicing Agreement
(including, without limitation, (i) all legal costs and expenses and all due
diligence costs and expenses associated with an evaluation of the potential
termination of the Servicer as a result of an event of default by such Servicer
under the related Servicing Agreement and (ii) all costs and expenses associated
with the complete transfer of servicing, including all servicing files and all
servicing data and the completion, correction or manipulation of such servicing
data as may be required by the successor Servicer to correct any errors or
insufficiencies in the servicing data or otherwise to enable the successor
Servicer to service the Mortgage Loans in accordance with the related Servicing
Agreement) are not fully and timely reimbursed by the terminated Servicer, the
Master Servicer or the Trustee, as applicable, shall be entitled to
reimbursement of such costs and expenses from the Master Servicer Custodial
Account; provided that if such servicing transfer costs are ultimately
reimbursed by the terminated Servicer, then the Master Servicer or the Trustee,
as applicable, shall remit such amounts that are reimbursed by the terminated
Servicer to the Master Servicer Custodial Account.
(d) The Master Servicer shall require each Servicer to comply with the
remittance requirements and other obligations set forth in the related Servicing
Agreement.
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(e) If the Master Servicer acts as Servicer, it will not assume liability
for the representations and warranties of the Servicer, if any, that it
replaces.
(f) Subject to the conditions set forth in this Section 3.02(f), the Master
Servicer is permitted to utilize one or more Subcontractors to perform certain
of its obligations hereunder. The Master Servicer shall promptly upon request
provide to the Depositor a written description (in form and substance
satisfactory to the Depositor) of the role and function of each Subcontractor
utilized by the Master Servicer, specifying (i) the identity of each such
Subcontractor that is a Servicing Function Participant and (ii) which elements
of the Servicing Criteria will be addressed in Assessments of Compliance
provided by each Servicing Function Participant. As a condition to the
utilization by the Master Servicer of any Servicing Function Participant, the
Master Servicer shall cause any such Servicing Function Participant for the
benefit of the Depositor to comply with the provisions of Section 3.21 of this
Agreement to the same extent as if such Servicing Function Participant were the
Master Servicer. The Master Servicer shall be responsible for obtaining from
each such Servicing Function Participant and delivering to the applicable
Persons any Assessment of Compliance and related Attestation Report required to
be delivered by such Servicing Function Participant under Section 3.21, in each
case as and when required to be delivered.
Notwithstanding the foregoing, if the Master Servicer engages a
Subcontractor in connection with the performance of any of its duties under this
Agreement, the Master Servicer shall be responsible for determining whether such
Subcontractor is an Additional Servicer.
The Master Servicer shall indemnify the Depositor, the Sponsor, the
Trustee, the Custodian and the Securities Administrator and any of their
directors, officers, employees or agents and hold them harmless against any and
all claims, losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain in any way related to a breach of the
Master Servicer's obligation set forth in the preceding paragraph or the failure
of the Master Servicer to perform any of its obligations under this Section
3.02(f), Section 3.20, Section 3.21 or Section 3.22.
Section 3.03 Fidelity Bond; Errors and Omissions Insurance.
The Master 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 involved in the performance of its
obligations as Master Servicer hereunder. These policies must insure the Master
Servicer against losses resulting from dishonest or fraudulent acts committed by
the Master Servicer's personnel, any employees of outside firms that provide
data processing services for the Master Servicer, and temporary contract
employees or student interns. No provision of this Section 3.03 requiring such
fidelity bond and errors and omissions insurance shall diminish or relieve the
Master 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 Xxxxxx Xxx in the Xxxxxx Mae
Servicing Guide or by Xxxxxxx Mac in the Xxxxxxx Xxx Xxxxxxx' & Servicers'
Guide, as amended or restated from time to time, or in an amount as may be
permitted to the Master Servicer by express waiver of Xxxxxx Xxx or Xxxxxxx Mac.
In the event that any such policy or bond ceases to be in effect, the Master
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Servicer shall obtain a comparable replacement policy or bond from an insurer or
issuer, meeting the requirements set forth above as of the date of such
replacement.
Section 3.04 Access to Certain Documentation.
The Master Servicer shall provide, and the Master Servicer shall cause each
Servicer to provide in accordance with the related Servicing Agreement, to the
OCC, the OTS, the FDIC and to comparable regulatory authorities supervising
Holders of Certificates and the examiners and supervisory agents of the OCC, the
OTS, the FDIC and such other authorities, access to the documentation required
by applicable regulations of the OCC, the OTS, the FDIC and such other
authorities 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 Master Servicer and the
related Servicer. In fulfilling such request for access, the Master Servicer
shall not be responsible to determine the sufficiency of any information
provided by such Servicer. Nothing in this Section 3.04 shall limit the
obligation of the Master Servicer and the related Servicer to observe any
applicable law and the failure of the Master Servicer or the related 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 Mortgage Insurance Policy; Claims.
(a) The Master Servicer shall not take, or permit any Servicer (to the
extent such action is prohibited under the applicable Servicing Agreement) to
take, any action that would result in noncoverage under any applicable Primary
Mortgage Insurance Policy of any loss which, but for the actions of the Master
Servicer or such Servicer, would have been covered thereunder. The Master
Servicer shall use its best reasonable efforts to cause each Servicer (to the
extent required under the related Servicing Agreement) to keep in force and
effect (to the extent that the Mortgage Loan requires the Mortgagor to maintain
such insurance), primary mortgage insurance applicable to each Mortgage Loan in
accordance with the provisions of this Agreement and the related Servicing
Agreement, as applicable. The Master Servicer shall not, and shall not permit
any Servicer (to the extent required under the related Servicing Agreement) to,
cancel or refuse to renew any such Primary Mortgage Insurance Policy that is in
effect at the date of the initial issuance of the Mortgage Note and is required
to be kept in force hereunder except in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each Servicer (to
the extent required under the related Servicing Agreement) to present, on behalf
of the Trust, the Trustee and the Certificateholders, claims to the insurer
under any Primary Mortgage Insurance Policies and, in this regard, to take such
reasonable action as shall be necessary to permit recovery under any Primary
Mortgage Insurance Policies respecting defaulted Mortgage Loans. Pursuant to
Sections 3.08 and 3.09, any amounts collected by the Master Servicer or any
Servicer under any Primary Mortgage Insurance Policies shall be deposited in the
Master Servicer Custodial Account, subject to withdrawal pursuant to Section
3.11.
Section 3.06 Rights of the Depositor, the Securities Administrator and the
Trustee in Respect of the Master Servicer.
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The Depositor may, but is not obligated to, enforce the obligations of the
Master Servicer hereunder and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of the Master Servicer hereunder
and in connection with any such defaulted obligation to exercise the related
rights of the Master Servicer hereunder; provided that the Master Servicer shall
not be relieved of any of its obligations hereunder by virtue of such
performance by the Depositor or its designee. None of the Securities
Administrator, the Trustee or the Depositor shall have any responsibility or
liability for any action or failure to act by the Master Servicer and the
Securities Administrator, the Trustee or the Depositor shall not be obligated to
supervise the performance of the Master Servicer hereunder or otherwise.
Section 3.07 Trustee to Act as Master Servicer.
(a) In the event the Master Servicer or any successor master servicer shall
for any reason no longer be the Master Servicer hereunder (including by reason
of an Event of Default), the Trustee as trustee hereunder shall within 90 days
of such time, assume, if it so elects, or shall appoint a successor Master
Servicer to assume, all of the rights and obligations of the Master Servicer
hereunder arising thereafter. Any such assumption shall be subject to Sections
7.02 and 8.05.
(b) The predecessor Master Servicer at its expense shall, upon request of
the Trustee, deliver to the assuming party all master servicing documents and
records and an accounting of amounts collected or held by the Master Servicer,
and shall transfer control of the Master Servicer Custodial Account and any
investment accounts to the successor Master Servicer, and otherwise use its best
efforts to effect the orderly and efficient transfer of its rights and duties as
Master Servicer hereunder to the assuming party. The Trustee shall be entitled
to be reimbursed from the predecessor Master Servicer (or the Trust if the
predecessor Master Servicer is unable to fulfill such obligations) for all
Master Servicing Transfer Costs.
Section 3.08 Servicer Custodial Accounts and Escrow Accounts.
The Master Servicer shall enforce the obligation of each Servicer to
establish and maintain a Servicer Custodial Account in accordance with the
applicable Servicing Agreement, with records to be kept with respect thereto on
a loan by loan basis, into which accounts shall be deposited within 48 hours (or
as of such other time specified in the related Servicing Agreement) of receipt
all collections of principal and interest on any Mortgage Loan and all
collections with respect to any REO Property received by a Servicer, including
Principal Prepayments, Insurance Proceeds, Liquidation Proceeds, Recoveries and
Advances made from the Servicer's own funds (less servicing compensation as
permitted by the applicable Servicing Agreement in the case of any Servicer) and
all other amounts to be deposited in the Servicer Custodial Account. The Master
Servicer is hereby authorized to make withdrawals from and deposits to the
related Servicer Custodial Account for purposes required or permitted by this
Agreement.
To the extent required by the related Servicing Agreement and by the
related Mortgage Note and not violative of current law, the Master Servicer
shall enforce the obligation of each Servicer to establish and maintain one or
more escrow accounts (for each Servicer, collectively, the "Escrow Account") and
deposit and retain therein all collections from the Mortgagors (or Advances by
such Servicer) for the payment of taxes, assessments, hazard insurance premiums
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or comparable items for the account of the Mortgagors. Nothing herein shall
require the Master Servicer to compel a Servicer to establish an Escrow Account
in violation of applicable law.
Section 3.09 Collection of Mortgage Loan Payments; Master Servicer
Custodial Accounts and Certificate Account.
(a) Continuously from the date hereof until the principal and interest on
all Mortgage Loans are paid in full, the Master Servicer shall enforce the
obligations of the Servicers to collect all payments due under the terms and
provisions of the Mortgage Loans when the same shall become due and payable to
the extent such procedures shall be consistent with the applicable Servicing
Agreement.
(b) The Securities Administrator shall establish and maintain the
Certificate Account, which shall be deemed to consist of six sub-accounts and
into which the Master Servicer will deposit on or prior to 11:00 a.m. New York
time, on each Distribution Date (or, if the Securities Administrator is no
longer the same Person as, or an Affiliate of, the Master Servicer, the Business
Day preceding each Distribution Date) all amounts on deposit in the Master
Servicer Custodial Account for distribution to Certificateholders.
(c) The Master Servicer shall establish and maintain the Master Servicer
Custodial Account, which shall be an Eligible Account. The Master Servicer
Custodial Account may be deemed a sub-account of the Certificate Account. The
Master Servicer shall, promptly upon receipt, deposit in the Master Servicer
Custodial Account and retain therein any amounts which are required to be
deposited in the Master Servicer Custodial Account by the Master Servicer.
(d) The Master Servicer shall deposit or cause to be deposited into the
Master Servicer Custodial Account, on the same Business Day of receipt (except
as otherwise specifically provided herein), the following payments and
collections remitted to the Master Servicer by each Servicer from its respective
Servicer Custodial Account pursuant to the related Servicing Agreement or
otherwise or received by the Master 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:
(i) all payments on account of principal of the related Mortgage
Loans, including Principal Prepayments;
(ii) all payments on account of interest on the related Mortgage
Loans, net of the related Administrative Fee;
(iii) (A) all related 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 3.08 and (B) any
Insurance Proceeds released from an Escrow Account;
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(iv) in the case of the Master Servicer Custodial Account, any amount
required to be deposited by the Master Servicer pursuant to Section 3.09(e)
in connection with any losses on Permitted Investments with respect to the
Master Servicer Custodial Account;
(v) any amounts relating to REO Property required to be remitted by
the applicable Servicer;
(vi) Periodic Advances made by the applicable Servicer pursuant to the
related Servicing Agreement (or, if applicable, by the Master Servicer
pursuant to Section 3.19 or the Trustee pursuant to Section 8.01) and any
Compensating Interest paid by the applicable Servicer pursuant to the
related Servicing Agreement;
(vii) all related Purchase Prices, all related Substitution Adjustment
Amounts and all related Reimbursement Amounts to the extent received by the
Master Servicer;
(viii) any related Recoveries; and
(ix) any other amounts required to be deposited hereunder.
If the Master Servicer shall deposit any amount not required to be deposited, it
may at any time withdraw such amount from the Master Servicer Custodial Account,
any provision herein to the contrary notwithstanding. All funds required to be
deposited in the Master Servicer Custodial Account shall be held by the Master
Servicer in trust for the Certificateholders until disbursed in accordance with
this Agreement or withdrawn in accordance with Section 3.11.
(e) Each institution at which the Master Servicer Custodial Account is
maintained shall invest the funds therein as directed in writing by the Master
Servicer in Permitted Investments, which shall mature not later than 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 Master Servicer Custodial Account
Reinvestment Income shall be for the benefit of the Master Servicer as part of
its master servicing compensation and shall be remitted to the Master Servicer
monthly as provided herein. The amount of any losses realized in the Master
Servicer Custodial Account incurred in any such account in respect of any such
investments shall promptly be deposited by the Master Servicer from its own
funds in the Master Servicer Custodial Account.
(f) Each institution at which the Certificate Account is maintained shall
invest the funds therein if directed in writing by the Securities Administrator
in Permitted Investments that are obligations of the institution that maintains
the Certificate Account, which shall mature on the Distribution Date and 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 income and gains net of any losses realized since the
preceding Distribution Date from Permitted Investments of funds in the
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Certificate Account shall be for the benefit of the Securities Administrator as
its compensation and the amount of any losses realized in the Certificate
Account in respect of any such Permitted Investments shall promptly be deposited
by the Securities Administrator from its own funds to the Certificate Account.
(g) The Master Servicer shall give notice to the Depositor, the Trustee,
the Securities Administrator and the Rating Agencies of any proposed change of
location of the Master Servicer Custodial Account not later than 30 days after
and not more that 45 days prior to any change thereof. The Securities
Administrator shall give notice to the Depositor, the Trustee, the Master
Servicer and the Rating Agencies of any proposed change of the location of the
Certificate Account maintained by the Securities Administrator not later than 30
days after and not more than 45 days prior to any change thereof. The creation
of the Master Servicer Custodial Account and the Certificate Account shall be
evidenced by a certification substantially in the form attached hereto as
Exhibit F.
(h) The Securities Administrator shall designate each of the Lower-Tier
Certificate Sub-Account and the Upper-Tier Certificate Sub-Account as a
sub-account of the Certificate Account.
(i) 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 Securities Administrator
shall (A) from funds available on deposit in the Certificate Account, be
deemed to deposit into the Lower-Tier Certificate Sub-Account, all funds
deemed on deposit in the Loan Group 1 Sub-Account, the Loan Group 2
Sub-Account, the Loan Group 3 Sub-Account and the Loan Group 4 Sub-Account
and (B) immediately thereafter, be deemed to deposit into the Upper-Tier
Certificate Sub-Account, the Lower-Tier Distribution Amount.
Section 3.10 Access to Certain Documentation and Information Regarding the
Mortgage Loans.
The Master Servicer shall afford and shall enforce the obligation of the
Servicers to afford the Securities Administrator and 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 Master Servicer or
the applicable Servicer.
Section 3.11 Permitted Withdrawals from the Certificate Account, the Master
Servicer Custodial Account and the Servicer Custodial Accounts.
(a) The Securities Administrator shall withdraw funds from the Certificate
Account for distributions to Certificateholders in the manner specified in this
Agreement. In addition, the Master Servicer may from time to time make
withdrawals from the Master Servicer Custodial Account for the following
purposes:
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(i) to pay to the Servicers (to the extent not previously retained by
them), the Servicing Fee to which they are entitled pursuant to the
Servicing Agreements and to pay itself any Master Servicer Custodial
Account Reinvestment Income;
(ii) to pay to the Securities Administrator and the Trustee any
amounts due to the Securities Administrator and the Trustee under this
Agreement (including, but not limited to, all amounts provided for under
Section 3.02, Section 3.07, Section 8.05 and Section 9.11, other than the
amounts provided for in the first sentence of Section 9.11);
(iii) to reimburse the Servicers (or, if applicable, itself or the
Trustee) for unreimbursed Advances made pursuant to the related Servicing
Agreement (or in the case of itself or the Trustee, pursuant to Section
3.19 or Section 8.01, as applicable), such right of reimbursement pursuant
to this clause (iii) being limited first to amounts received on the
Mortgage Loans serviced by such Servicer in the related Loan Group in
respect of which any such Advance was made and then limited to amounts
received on all the Mortgage Loans serviced by such Servicer (or, if
applicable, Master Servicer or the Trustee) in respect of which any such
Advance was made;
(iv) to reimburse the Servicers (or, if applicable, itself or the
Trustee) for any Nonrecoverable Advance previously made, such right of
reimbursement pursuant to this clause (iv) being limited first 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 and then
limited to amounts received on all the Mortgage Loans serviced by such
Servicer (of, if applicable, the Master Servicer or the Trustee);
(v) to reimburse the Servicers for Insured Expenses from the related
Insurance Proceeds;
(vi) 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;
(vii) to reimburse itself or the Depositor for expenses incurred by
either of them and reimbursable pursuant to this Agreement, including but
not limited to, Section 3.02 and Section 7.03;
(viii) to withdraw any amount deposited in the Master Servicer
Custodial Account and not required to be deposited therein; and
(ix) to clear and terminate the Master Servicer Custodial Account upon
termination of this Agreement pursuant to Section 10.01.
If the Master Servicer shall remit to the Securities Administrator any
amount not required to be remitted, it may at any time direct the Securities
Administrator 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 Securities
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Administrator which describes the amounts remitted in error to the Securities
Administrator for deposit to the Certificate Account.
(b) On each Distribution Date, funds on deposit in the Certificate Account
and deemed to be on deposit in the Upper-Tier Certificate Sub-Account shall be
used to make payments on the Upper-Tier Interests 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 and Other Insurance.
(a) For each Mortgage Loan, the Master Servicer shall enforce any
obligation of the Servicers under the related Servicing Agreements to maintain
or cause to be maintained fire, flood and hazard insurance with extended
coverage customary in the area where the Mortgaged Property is located in
accordance with the related Servicing Agreements. It is understood and agreed
that such insurance provided for in this Section 3.12 shall be with insurers
meeting the eligibility requirements set forth in the applicable Servicing
Agreement and that no earthquake or other additional insurance is to be required
of any Mortgagor or to be maintained on property acquired in respect of a
defaulted loan, other than pursuant to such applicable laws and regulations as
shall at any time be in force and as shall require such additional insurance.
(b) Pursuant to Sections 3.08 and 3.09, any amounts collected by the Master
Servicer, or by any Servicer, under any insurance policies (other than amounts
to be applied to the restoration or repair of the property subject to the
related Mortgage or released to the Mortgagor in accordance with the applicable
Servicing Agreement) shall be deposited into the Master Servicer Custodial
Account, subject to withdrawal pursuant to Sections 3.09 and 3.11. Any cost
incurred by the Master Servicer or any Servicer in maintaining any such
insurance if the Mortgagor defaults in its obligation to do so shall be added to
the amount owing under the Mortgage Loan where the terms of the Mortgage Loan so
permit; provided, however, that the addition of any such cost shall not be taken
into account for purposes of calculating the distributions to be made to
Certificateholders and shall be recoverable by the Master Servicer or such
Servicer pursuant to Sections 3.08 and 3.09
Section 3.13 Presentment of Claims and Collection of Proceeds.
The Master Servicer shall (to the extent provided in the applicable
Servicing Agreement) cause the related Servicer to, prepare and present on
behalf of the Trust and the Certificateholders all claims under the Insurance
Policies and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured's claim) as shall be necessary to
realize recovery under such policies. Any proceeds disbursed to the Master
Servicer (or disbursed to a Servicer and remitted to the Master Servicer) in
respect of such policies, bonds or contracts shall be promptly deposited in the
Master Servicer Custodial Account upon receipt, except that any amounts realized
that are to be applied to the repair or restoration of the related Mortgaged
Property as a condition precedent to the presentation of claims on the related
Mortgage Loan to the insurer under any applicable Insurance Policy need not be
so deposited (or remitted).
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Section 3.14 Enforcement of Due-On-Sale Clauses; Assumption Agreements.
To the extent provided in the applicable Servicing Agreement and to the
extent Mortgage Loans contain enforceable due-on-sale clauses, the Master
Servicer shall cause the Servicers to enforce such clauses in accordance with
the applicable Servicing Agreement. If applicable law prohibits the enforcement
of a due-on-sale clause or such clause is otherwise not enforced in accordance
with the applicable Servicing Agreement, and, as a consequence, a Mortgage Loan
is assumed, the original Mortgagor may be released from liability in accordance
with the applicable Servicing Agreement
Section 3.15 Realization Upon Defaulted Mortgage Loans; REO Property.
(a) The Master Servicer shall cause each Servicer (to the extent required
under the related Servicing Agreement) 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, all in
accordance with the applicable Servicing Agreement.
(b) With respect to any REO Property, the deed or certificate of sale shall
be taken in the name of the Trust for the benefit of the Certificateholders, or
its nominee, on behalf of the Certificateholders. The Master Servicer shall
enforce the obligation of the Servicers, to the extent provided in the
applicable Servicing Agreement, to (i) cause the name of the Trust to be placed
on the title to such REO Property and (ii) ensure that the title to such REO
Property references this Agreement. The Master Servicer shall, to the extent
provided in the applicable Servicing Agreement, cause the applicable Servicer to
sell any REO Property as expeditiously as possible and in accordance with the
provisions of this Agreement and the related Servicing Agreement, as applicable.
Pursuant to its efforts to sell such REO Property, the Master Servicer shall
cause the applicable Servicer to protect and conserve such REO Property in the
manner and to the extent required by the applicable Servicing Agreement, subject
to the REMIC Provisions. In the event that the Trust Estate acquires any
Mortgaged Property as aforesaid or otherwise in connection with a default or
imminent default on a Mortgage Loan, the Master Servicer shall enforce the
obligation of the related Servicer to dispose of such Mortgaged Property within
the time period specified in the applicable Servicing Agreement, but in any
event within three years after the acquisition by the Servicer for the Trust
(such period, the "REO Disposition Period") unless (i) the Servicer provides to
the Trustee, the Master Servicer and the Securities Administrator an Opinion of
Counsel to the effect that the holding by the Trust of such Mortgaged Property
subsequent to three years after its acquisition will not result in the
imposition on any REMIC created hereunder of taxes on "prohibited transactions"
as defined in Section 860F of the Code or "net income from foreclosure property"
as defined in Section 860G of the Code or under the law of any state in which
real property securing a Mortgage Loan owned by the Trust is located or cause
any REMIC created hereunder to fail to qualify as a REMIC for federal income tax
purposes or for state tax purposes under the laws of any state in which real
property securing a Mortgage Loan owned by the Trust is located at any time that
any Certificates are outstanding or (ii) the Servicer shall have applied for and
received an extension of such period from the Internal Revenue Service, in which
case the Trust Estate may continue to hold such Mortgaged Property for the
period of such extension.
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(c) The Master Servicer shall, to the extent required by the related
Servicing Agreement, cause the applicable Servicer to deposit all funds
collected and received in connection with the operation of any REO Property in
the Servicer Custodial Account.
(d) The applicable Servicer, upon the final disposition of any REO
Property, shall be entitled to reimbursement for any related unreimbursed
Advances and other unreimbursed advances as well as any unpaid Servicing Fees
from Liquidation Proceeds received in connection with the final disposition of
such REO Property; provided that any such unreimbursed Advances as well as any
unpaid Servicing Fees may be reimbursed or paid, as the case may be, prior to
final disposition, out of any net rental income or other net amounts derived
from such REO Property.
(e) The Liquidation Proceeds from the final disposition of the REO
Property, net of any payment to the applicable Servicer as provided above shall
be deposited in the related Servicer Custodial Account on or prior to the
Determination Date in the month following receipt thereof and be remitted by
wire transfer in immediately available funds to the Master Servicer for deposit
into the Master Servicer Custodial Account.
Notwithstanding any other provision of this Agreement, the Master Servicer
shall not permit any Mortgaged Property acquired by the Trust to 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, (ii) result in
the receipt by any REMIC created hereunder of any "income from non-permitted
assets" within the meaning of Section 860F(a)(2)(B) of the Code or any "net
income from foreclosure property" which is subject to taxation under the REMIC
Provisions or (iii) 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 related
Master Servicer or related Servicer, as applicable, has agreed to indemnify and
hold harmless the Trust with respect to the imposition of any such taxes.
Notwithstanding any other provision of this Agreement, the Master Servicer
and the Securities Administrator, as applicable, shall comply with all federal
withholding requirements with respect to payments to Certificateholders of
interest or original issue discount that the Master Servicer or the Securities
Administrator reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for any such withholding. Without
limiting the foregoing, the Securities Administrator agrees that it will not
withhold with respect to payments of interest or original issue discount in the
case of a Certificateholder that has furnished or caused to be furnished an
effective Form W-8 or an acceptable substitute form or a successor form and who
is not a "10 percent shareholder" within the meaning of Code Section
871(h)(3)(B) or a "controlled foreign corporation" described in Code Section
881(c)(3)(C) with respect to the Trust or the Depositor. In the event the
Securities Administrator withholds any amount from interest or original issue
discount payments or advances thereof to any Certificateholder pursuant to
federal withholding requirements, the Securities Administrator shall indicate
the amount withheld to such Certificateholder.
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Section 3.16 Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the Master
Servicer or the related Servicer of a notification that payment in full will be
escrowed in a manner customary for such purposes, the Master Servicer or the
related Servicer will immediately notify the Trustee (or, at the direction of
the Trustee, a Custodian) by delivering, or causing to be delivered, two copies
(one of which will be returned to the related Servicer with the Mortgage File)
of a Request for Release (which may be delivered in an electronic format
acceptable to the Trustee and the Master Servicer or the related Servicer). Upon
receipt of such request, the Trustee or a Custodian, as applicable, shall within
seven (7) Business Days release the related Mortgage File to the Master Servicer
or the related Servicer. The Trustee shall at the Master Servicer's or the
related Servicer's direction execute and deliver to the Master Servicer or the
related Servicer the request for reconveyance, deed of reconveyance or release
or satisfaction of mortgage or such instrument releasing the lien of the
Mortgage relating to the Mortgage Loan, in each case provided by the Master
Servicer or the related Servicer, together with the Mortgage Note with written
evidence of cancellation thereon. If the Mortgage has been recorded in the name
of MERS or its designee, the Master Servicer shall enforce the applicable
Servicer's obligation under the related Servicing Agreement take all necessary
action to reflect the release of the Mortgage on the records of MERS. Expenses
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the related Mortgagor of the Mortgage Loan.
From time to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including for such purpose collection under
any Primary Mortgage Insurance Policy, any policy of flood insurance, any
fidelity bond or errors or omissions policy, or for the purposes of effecting a
partial release of any Mortgaged Property from the lien of the Mortgage or the
making of any corrections to the Mortgage Note or the Mortgage or any of the
other documents included in the Mortgage File, the Trustee or a Custodian, as
applicable, shall, upon delivery to the Trustee (or, at the direction of the
Trustee, a Custodian) of a Request for Release signed by a Master Servicing
Officer or a Servicing Officer, release the Mortgage File within seven (7)
Business Days to the Master Servicer or the related Servicer. Subject to the
further limitations set forth below, the Master Servicer or the applicable
Servicer shall cause the Mortgage Files so released to be returned to the
Trustee or a Custodian, as applicable, when the need therefor no longer exists,
unless the Mortgage Loan is liquidated and the proceeds thereof are deposited in
the related Servicer Custodial Account, in which case such Servicer shall
deliver to the Trustee or a Custodian, as applicable, a Request for Release,
signed by a Servicing Officer.
If the Master Servicer or any related Servicer at any time seeks to
initiate a foreclosure proceeding in respect of any Mortgaged Property as
authorized by this Agreement or the Servicing Agreement, the Master Servicer or
any related Servicer shall deliver or cause to be delivered to the Trustee, for
signature, as appropriate, any court pleadings, requests for trustee's sale or
other documents necessary to effectuate such foreclosure or any legal action
brought to obtain judgment against the Mortgagor on the Mortgage Note or the
Mortgage or to obtain a deficiency judgment or to enforce any other remedies or
rights provided by the Mortgage Note or the Mortgage or otherwise available at
law or in equity.
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Section 3.17 Documents, Records and Funds in Possession of the Master
Servicer to be Held for the Trustee.
Notwithstanding any other provisions of this Agreement, the Master Servicer
shall enforce the obligation of each Servicer to transmit to the Trustee (or a
Custodian on behalf of the Trustee) as required by this Agreement and the
Servicing Agreements all documents and instruments in respect of a Mortgage Loan
coming into the possession of the Servicer from time to time and shall account
fully to the Trustee as required by this Agreement and the Servicing Agreements
for any funds received by the Master Servicer or the related Servicer or which
otherwise are collected by the Master Servicer or the related Servicer as
Liquidation Proceeds, Recoveries or Insurance Proceeds in respect of any
Mortgage Loan. All Mortgage Files and funds collected or held by, or under the
control of, the Master Servicer or the related Servicer in respect of any
Mortgage Loans, whether from the collection of principal and interest payments
or from Liquidation Proceeds, including but not limited to, any funds on deposit
in the Master Servicer Custodial Account or any Servicer Custodial Account,
shall be held by the Master Servicer or the related Servicer for and on behalf
of the Trustee and shall be and remain the sole and exclusive property of the
Trustee on behalf of the Trust, subject to the applicable provisions of this
Agreement and the related Servicing Agreement. The Master Servicer also agrees
that it shall not, and shall enforce any requirement under the related Servicing
Agreement that the related Servicer shall not, knowingly create, incur or
subject any Mortgage File or any funds that are deposited in any Master Servicer
Custodial Account, any Servicer Custodial Account, the Certificate Account or
any Escrow Account, or any funds that otherwise are or may become due or payable
to the Trustee for the benefit of the Certificateholders, to any claim, lien,
security interest, judgment, levy, writ of attachment or other encumbrance
created by the Master Servicer or Servicer, or assert by legal action or
otherwise any claim or right of setoff against any Mortgage File or any funds
collected on, or in connection with, a Mortgage Loan, except, however, that the
Master Servicer shall be entitled to set off against and deduct from any such
funds any amounts that are properly due and payable to the Master Servicer under
this Agreement.
Section 3.18 Master Servicer Compensation.
As compensation for its services hereunder, the Master Servicer shall be
entitled to compensation in the form of the Master Servicer Custodial Account
Reinvestment Income. The Master Servicer shall be required to pay all expenses
incurred by it in connection with its master servicing activities hereunder and
shall not be entitled to reimbursement therefor except as specifically provided
in this Agreement
Section 3.19 Advances.
The Master Servicer shall enforce the obligations of each Servicer to make
a Periodic Advance in accordance with the applicable Servicing Agreement. A
Servicer shall be entitled to be reimbursed from the applicable Servicer
Custodial Account for all Advances of its own funds made pursuant to the related
Servicing Agreement. Based upon information set forth in the servicer reports,
the Master Servicer shall inform the Securities Administrator of the amount of
the Periodic Advance to be made by a Servicer no later than the related
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Remittance Date. If a Servicer fails to make any required Periodic Advance
pursuant to the related Servicing Agreement, the Master Servicer shall (i)
unless the Master Servicer determines that such Periodic Advance would not be
recoverable in its good faith business judgment, make such Periodic Advance not
later than the Business Day preceding the related Distribution Date and (ii) to
the extent such failure leads to the termination of the Servicer and until such
time as a successor Servicer is appointed, continue to make Periodic Advances
required pursuant to the related Servicing Agreement for any Distribution Date,
within the same time frame set forth in (i) above, unless the Master Servicer
determines (to the extent provided in the related Servicing Agreement) that such
Periodic Advance would not be recoverable. If the Master Servicer is unable to
make a Periodic Advance required to be made by it in accordance with this
Section 3.19, the Master Servicer shall immediately, and in no event later than
5:00 P.M. New York time on the last Business Day preceding the related
Distribution Date, give written notice thereof to the Trustee, the Securities
Administrator and the Depositor.
Section 3.20 Annual Statement as to Compliance.
(a) Each of the Master Servicer and the Securities Administrator shall
deliver, and shall cause any Additional Servicer engaged by it to deliver, or
otherwise make available to the Depositor and the Securities Administrator (and
the Securities Administrator will make available to the Trustee and each Rating
Agency), no later than March 15th of each calendar year beginning in 2008, an
Officer's Certificate (each, together with such similar certificate delivered by
each Servicer as described in Section 3.20(b), a "Compliance Statement"), signed
by an officer of such party, stating, as to the signer thereof, that (a) a
review of the activities of such party during the preceding calendar year or
portion thereof and of performance of such party under this Agreement or such
applicable agreement in case of an Additional Servicer has been made under such
officers' supervision and (b) to the best of such officer's knowledge, based on
such review, such party has fulfilled all of its obligations under this
Agreement or such applicable agreement in case of an Additional Servicer in all
material respects throughout such year, or, if there has been a failure to
fulfill any such obligation in any material respect, specifying each such
failure known to such officer and the nature and status thereof. Such Compliance
Statements shall contain no restrictions or limitations on their use. The
obligations of the Master Servicer and the Securities Administrator under this
Section apply to each entity that acted as Master Servicer or Securities
Administrator, as applicable, during the applicable period, whether or not such
entity is acting as Master Servicer or Securities Administrator at the time such
Compliance Statement is required to be delivered.
(b) In the event the Master Servicer or the Securities Administrator is
terminated or resigns pursuant to the terms of this Agreement, such party shall
provide, and shall use its reasonable efforts to cause any Additional Servicer
that resigns or is terminated under any applicable servicing agreement to
provide, a Compliance Statement pursuant to this Section 3.20 with respect to
the period of time that the Master Servicer or the Securities Administrator was
subject to this Agreement or such applicable agreement in the case of an
Additional Servicer or the period of time that the Additional Servicer was
subject to such other servicing agreement. The Master Servicer shall enforce any
obligation of each Servicer, to the extent set forth in the related Servicing
Agreement, to deliver to the Master Servicer a Compliance Statement within the
time frame set forth in, and in such form and substance as may be required
pursuant to, the related Servicing Agreement. The Master Servicer shall include
such Compliance Statements of the Servicers with its own Compliance Statement to
be submitted pursuant to this Section 3.20.
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Section 3.21 Assessments of Compliance and Attestation Reports.
(a) Each of the Master Servicer, the Securities Administrator and the
Custodian, each at its own expense, shall deliver, and shall cause each
Servicing Function Participant engaged by it to deliver, or otherwise make
available to the Depositor and the Securities Administrator on or before March
10th of each calendar year beginning in 2008 (provided that each of the Master
Servicer, the Securities Administrator and the Custodian shall make its best
efforts to deliver such report by March 10th, but will not be in default in its
obligation to so deliver such report unless it is not delivered by March 15th),
a report regarding such party's assessment of compliance with the Relevant
Servicing Criteria (each, together with such similar report delivered by each
Servicer as described in Section 3.21(c), an "Assessment of Compliance") that
contains (i) a statement by such party of its responsibility for assessing
compliance with the Relevant Servicing Criteria, (ii) a statement that such
party used the Relevant Servicing Criteria to assess compliance with the
Relevant Servicing Criteria, (iii) such party's assessment of compliance with
the Relevant Servicing Criteria as of and for the fiscal year covered by the
Form 10-K required to be filed pursuant to Section 3.22(c), including, if there
has been any material instance of noncompliance with the Relevant Servicing
Criteria, a discussion of each such failure and the nature and status thereof
and (iv) a statement that a registered public accounting firm has issued an
attestation report on such party's assessment of compliance with the Relevant
Servicing Criteria as of and for such period.
No later than February 1 of each fiscal year for the Trust for which a 10-K
is required to be filed, the Master Servicer, the Securities Administrator and
the Custodian shall each forward to the Depositor and the Securities
Administrator the name of each Servicing Function Participant engaged by it and
what Relevant Servicing Criteria will be addressed in the report on assessment
of compliance prepared by such Servicing Function Participant. When the Master
Servicer, the Securities Administrator and the Custodian (or any Servicing
Function Participant engaged by them) submit their assessments to the Depositor
and the Securities Administrator, such parties will also at such time include
the assessment (and attestation pursuant to Section 3.21(b)) of each Servicing
Function Participant engaged by it.
At any time after February 1 of each fiscal year, if the Master Servicer,
the Securities Administrator or the Custodian determines or is informed that the
list of Relevant Servicing Criteria to be addressed in the report on assessment
of compliance prepared by each Servicing Function Participant is no longer in
complete accordance or no longer reasonably likely to be in complete accordance
with the Relevant Servicing Criteria for such Servicing Function Participant as
notified to the Depositor and Securities Administrator in the paragraph
immediately above, the Master Servicer, the Securities Administrator or the
Custodian, as the case may be, shall promptly inform the Depositor and the
Securities Administrator by written notice that such Servicing Function
Participant is likely to address different Relevant Servicing Criteria in the
report on assessment of compliance prepared by such Servicing Function
Participant. Following transmission of such notice, the Master Servicer, the
Securities Administrator or the Custodian, as the case may be, shall negotiate
with such Servicing Function Participants that the Master Servicer, Securities
Administrator or Custodian, as applicable, deems necessary so that all Relevant
Servicing Criteria shall be addressed by one or more Servicing Function
Participants and so that all Assessments of Compliance shall, in the
determination of the Depositor, be satisfactory.
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Within 10 calendar days of receipt of such Assessments of Compliance, the
Securities Administrator shall confirm that the Assessments of Compliance, taken
individually address the Relevant Servicing Criteria for each party as set forth
on Exhibit N and on any similar exhibit set forth in each Servicing Agreement in
respect of each Servicer and notify the Depositor of any exceptions. None of
such parties shall be required to deliver any such Assessments of Compliance
until April 15 in any given year so long as it has received written confirmation
from the Depositor that a Form 10-K is not required to be filed in respect of
the Trust for the preceding calendar year. The Custodian and any Servicing
Function Participant engaged by it shall not be required to deliver or cause the
delivery of such Assessments of Compliance in any given year that a Form 10-K is
not required to be filed in respect of the Trust for the preceding fiscal year;
provided, however, the Custodian shall deliver to the Depositor on or before
March 15th of any such year in which the Custodian is not required to deliver an
Assessment of Compliance with respect to any other transaction for which the
Depositor is the depositor, a copy of the Assessment of Compliance for the
preceding fiscal year prepared by the Custodian relating to the Custodian's
servicing platform with respect to asset-backed securities that are backed by
assets of the type backing the Offered Certificates.
(b) Each of the Master Servicer, the Securities Administrator and the
Custodian, each at its own expense, shall cause, and shall cause each Servicing
Function Participant engaged by it to cause, on or before March 10th of each
calendar year beginning in 2008 (provided that each of the Master Servicer, the
Securities Administrator and the Custodian shall make its best efforts to
deliver such report by March 10th, but will not be in default in its obligation
to so deliver such report unless it is not delivered by March 15th), a
registered public accounting firm (which may also render other services to the
Master Servicer, the Securities Administrator, the Custodian or such other
Servicing Function Participants, as the case may be) and that is a member of the
American Institute of Certified Public Accountants to furnish a report (each,
together with such similar report delivered by each Servicer as described in
Section 3.21(c), an "Attestation Report") to the Securities Administrator and
the Depositor, to the effect that (i) it has obtained a representation regarding
certain matters from the management of such party, which includes an assertion
that such party has complied with the Relevant Servicing Criteria, and (ii) on
the basis of an examination conducted by such firm in accordance with standards
for attestation engagements issued or adopted by the Public Company Accounting
Oversight Board, it is expressing an opinion as to whether such party's
compliance with the Relevant Servicing Criteria was fairly stated in all
material respects, or it cannot express an overall opinion regarding such
party's assessment of compliance with the Relevant Servicing Criteria. In the
event that an overall opinion cannot be expressed, such registered public
accounting firm shall state in such Attestation Report why it was unable to
express such an opinion. Each such related Attestation Report shall be made in
accordance with Rules 1-02(a)(3) and 2-02(g) of the Commission's Regulation S-X.
Such Attestation Reports must be available for general use and not contain
restricted use language. If requested by the Depositor, such report shall
contain or be accompanied by a consent of such accounting firm to inclusion or
incorporation of such report in the Depositor's registration statement on Form
S-3 relating to the Offered Certificates and the Form 10-K for the Trust.
Within 10 calendar days of receipt of such Attestation Reports, the
Securities Administrator shall confirm that each Assessment of Compliance is
coupled with a related Attestation Report and shall notify the Depositor of any
exceptions. None of the Master Servicer, the Securities Administrator or any
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Servicing Function Participant engaged by such parties shall be required to
deliver or cause the delivery of such Attestation Reports until April 15 in any
given year so long as it has received written confirmation from the Depositor
that a Form 10-K is not required to be filed in respect of the Trust for the
preceding fiscal year. The Custodian and any Servicing Function Participant
engaged by it shall not be required to deliver or cause the delivery of such
Attestation Report in any given year that a Form 10-K is not required to be
filed in respect of the Trust for the preceding fiscal year; provided, however,
the Custodian shall deliver to the Depositor on or before March 15th of any such
year in which the Custodian is required to deliver an Assessment of Compliance
pursuant to the proviso in the last paragraph of Section 3.21(a), a copy of an
attestation report relating to such Assessment of Compliance.
(c) The Master Servicer shall enforce any obligation of each Servicer, to
the extent set forth in the related Servicing Agreement, to deliver to the
Master Servicer an Assessment of Compliance and related Attestation Report
within the time frame set forth in, and in such form and substance as may be
required pursuant to, the related Servicing Agreement. The Master Servicer shall
include such Assessments of Compliance and Attestation Reports of the Servicers
with its own Assessment of Compliance and related Attestation Report to be
submitted pursuant to this Section 3.21.
(d) In the event the Master Servicer, the Custodian or the Securities
Administrator is terminated or resigns pursuant to the terms of this Agreement,
such party shall provide, and each such party shall cause any Servicing Function
Participant engaged by it to provide, an Assessment of Compliance pursuant to
this Section 3.21, coupled with an Attestation Report as required in this
Section 3.21 with respect to the period of time that the Master Servicer or the
Securities Administrator was subject to this Agreement.
Section 3.22 Reports to the Commission.
(a) The Securities Administrator and the Master Servicer shall reasonably
cooperate with the Depositor in connection with the Trust's satisfying its
reporting requirements under the Exchange Act. Without limiting the generality
of the foregoing, the Securities Administrator shall prepare and file on behalf
of the Trust any Form 8-K, Form 10-D and Form 10-K required by the Exchange Act
and the rules and regulations of the Commission thereunder, and the Master
Servicer shall sign such Forms on behalf of the Trust. Notwithstanding the
previous sentence, the Depositor shall file the Form 8-K in connection with the
filing of this Agreement.
(b) Within 15 days after each Distribution Date (subject to permitted
extensions under the Exchange Act), the Securities Administrator shall prepare
and file on behalf of the Trust any Form 10-D required by the Exchange Act, in
form and substance as required by the Exchange Act. The Securities Administrator
shall file each Form 10-D with a copy of the Monthly Statement for such
Distribution Date attached thereto. Any disclosure in addition to the Monthly
Statement for such Distribution Date that is required to be included on Form
10-D ("Additional Form 10-D Disclosure") shall be reported by the parties set
forth on Exhibit O hereto to the Depositor and the Securities Administrator and
directed and approved by the Depositor pursuant to the following paragraph, and
the Securities Administrator will have no duty or liability for any failure
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hereunder to determine or prepare any Additional Form 10-D Disclosure, except as
set forth in this Section 3.22(b).
As set forth on Exhibit O hereto, within 5 calendar days after the related
Distribution Date, (i) the parties described on Exhibit O shall be required to
provide to the Securities Administrator (at xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
with a copy by facsimile to 000-000-0000) and the Depositor, to the extent known
by a responsible officer thereof, in XXXXX-compatible format, or in such other
format as otherwise agreed upon by the Securities Administrator and such party,
any Additional Form 10-D Disclosure, if applicable, together with an Additional
Disclosure Notification in the form of Exhibit S and (ii) the Depositor shall
approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 10-D Disclosure on Form 10-D. The Securities
Administrator shall compile all such information provided to it in a Form 10-D
prepared by it. The Securities Administrator has no duty under this Agreement to
monitor or enforce the performance by the parties listed on Exhibit O of their
duties under this paragraph or proactively solicit or procure from such parties
any Additional Form 10-D Disclosure information. The Depositor will be
responsible for any reasonable fees and expenses assessed or incurred by the
Securities Administrator in connection with including any Additional Form 10-D
Disclosure on Form 10-D pursuant to this paragraph.
After preparing the Form 10-D, the Securities Administrator shall forward
electronically a copy of the Form 10-D to the Depositor and, upon request, the
Master Servicer for review. Within 2 Business Days after receipt of such copy,
the Depositor shall notify the Securities Administrator in writing (which may be
furnished electronically) of any changes to or approval of such Form 10-D. In
the absence of any written changes or approval, the Securities Administrator
shall be entitled to assume that such Form 10-D is in final form and the
Securities Administrator may proceed with the execution and filing of the Form
10-D. A duly authorized officer of the Master Servicer shall sign each Form
10-D. If a Form 10-D cannot be filed on time or if a previously filed Form 10-D
needs to be amended, the Securities Administrator will follow the procedures set
forth in Section 3.22(h)(ii). Form 10-D requires the registrant to indicate (by
checking "yes" or "no") that it "(1) has filed all reports required to be filed
by Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or
for such shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90 days." The
Depositor hereby represents to the Securities Administrator that the Depositor
has filed all such required reports during the preceding 12 months and that is
has been subject to such filing requirement for the past 90 days. The Depositor
shall notify the Securities Administrator in writing, no later than the fifth
calendar day after the related Distribution Date with respect to the filing of a
report on Form 10-D, if the answer to either question should be "no." The
Securities Administrator shall be entitled to rely on such representations in
preparing, executing and/or filing any such report. Promptly (but no later than
1 Business Day) after filing with the Commission, the Securities Administrator
will make available on its internet website a final executed copy of each Form
10-D prepared and filed by the Securities Administrator. The signing party at
the Master Servicer can be contacted at the address specified in Section 11.05.
Each party to this Agreement acknowledges that the performance by the Master
Servicer and Securities Administrator of its duties under this Section 3.22(b)
related to the timely preparation, arrangement for execution and filing of Form
10-D is contingent upon such parties strictly observing all applicable deadlines
in the performance of their duties under this Section 3.22(b) and also
contingent upon the Servicers, the Custodian and any Servicing Function
Participant strictly observing deadlines no later than those set forth in this
paragraph that are applicable to the parties to this Agreement in the delivery
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to the Securities Administrator of any necessary Additional Form 10-D Disclosure
pursuant to the related Servicing Agreements, any custodial agreement or any
other applicable agreement. Neither the Master Servicer nor the Securities
Administrator shall have any liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare, arrange for
execution and/or timely file such Form 10-D, where such failure results from the
Master Servicer's or the Securities Administrator's inability or failure to
receive, on a timely basis, any information from any other party hereto or any
Servicer, Custodian or Servicing Function Participant needed to prepare, arrange
for execution or file such Form 10-D, not resulting from its own negligence, bad
faith or willful misconduct.
(c) On or prior to the 90th day after the end of each fiscal year of the
Trust or such earlier date as may be required by the Exchange Act (the "10-K
Filing Deadline") (it being understood that the fiscal year for the Trust ends
on December 31st of each year), commencing in March 2008, the Securities
Administrator shall prepare and file on behalf of the Trust a Form 10-K, in form
and substance as required by the Exchange Act. Each such Form 10-K shall include
the following items, in each case to the extent they have been delivered to the
Securities Administrator within the applicable time frames set forth in this
Agreement and the related Servicing Agreements:
(i) a Compliance Statement for each Servicer, the Master Servicer and
the Securities Administrator (each such party, together with the Custodian,
a "Reporting Servicer") as described under Section 3.20;
(ii) (A) the Assessment of Compliance for each Reporting Servicer, as
described under Section 3.21(a) and (c), and (B) if each Reporting
Servicer's Assessment of Compliance identifies any material instance of
noncompliance, disclosure identifying such instance of noncompliance, or if
each Reporting Servicer's Assessment of Compliance is not included as an
exhibit to such Form 10-K, disclosure that such report is not included and
an explanation why such report is not included; provided, however, that the
Securities Administrator, at its discretion, may omit from the Form 10-K
any Assessment of Compliance described in this clause (ii) or Attestation
Report described in clause (iii) below that is not required to be filed
with such Form 10-K pursuant to Regulation AB;
(iii) (A) the Attestation Report for each Reporting Servicer, as
described under Section 3.21(b) and (c), and (B) if any Reporting
Servicer's Attestation Report identifies any material instance of
noncompliance, disclosure identifying such instance of noncompliance, or if
any Reporting Servicer's Attestation Report is not included as an exhibit
to such Form 10-K, disclosure that such Attestation Report is not included
and an explanation why such Attestation Report is not included; and
(iv) a Xxxxxxxx-Xxxxx Certification, as described in Section 3.22(e).
Any disclosure or information in addition to (i) through (iv) above that is
required to be included on Form 10-K ("Additional Form 10-K Disclosure") shall
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be reported by the parties set forth on Exhibit P to the Depositor and the
Securities Administrator and directed and approved by the Depositor pursuant to
the following paragraph, and the Securities Administrator will have no duty or
liability for any failure hereunder to determine or prepare any Additional Form
10-K Disclosure, except as set forth in this Section 3.22(c).
As set forth on Exhibit P hereto, no later than March 1 of each year that
the Trust is subject to the Exchange Act reporting requirements, commencing in
2008, (i) the parties described in Exhibit P shall be required to provide to the
Securities Administrator (at xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx with a copy by
facsimile to 000-000-0000) and the Depositor, to the extent known by a
responsible officer thereof, in XXXXX-compatible format, or in such other format
as otherwise agreed upon by the Securities Administrator and such party, any
Additional Form 10-K Disclosure, together with an Additional Disclosure
Notification in the form attached hereto as Exhibit S and (ii) the Depositor
shall approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 10-K Disclosure on Form 10-K. The Securities
Administrator shall compile all such information provided to it in a Form 10-K
prepared by it. The Securities Administrator has no duty under this Agreement to
monitor or enforce the performance by the parties listed on Exhibit P of their
duties under this paragraph or proactively solicit or procure from such parties
any Additional Form 10-K Disclosure information. The Depositor will be
responsible for any reasonable fees and expenses assessed or incurred by the
Securities Administrator in connection with including any Additional Form 10-K
Disclosure on Form 10-K pursuant to this paragraph.
After preparing the Form 10-K, the Securities Administrator shall forward
electronically a copy of the Form 10-K to the Master Servicer and Depositor for
review. Within three Business Days after receipt of such copy, the Depositor
shall notify the Securities Administrator in writing (which may be furnished
electronically) of any changes to or approval of such Form 10-K. A senior
officer of the Master Servicer in charge of the master servicing function shall
sign the Form 10-K. If a Form 10-K cannot be filed on time or if a previously
filed Form 10-K needs to be amended, the Securities Administrator will follow
the procedures set forth in Section 3.22(h)(ii). Form 10-K requires the
registrant to indicate (by checking "yes" or "no") that it "(1) has filed all
reports required to be filed by Section 13 or 15(d) of the Exchange Act during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days." The Depositor hereby represents to the
Securities Administrator that the Depositor has filed all such required reports
during the preceding 12 months and that is has been subject to such filing
requirement for the past 90 days. The Depositor shall notify the Securities
Administrator in writing, no later than March 15th with respect to the filing of
a report on Form 10-K, if the answer to either question should be "no." The
Securities Administrator shall be entitled to rely on such representations in
preparing, executing and/or filing any such report. Promptly (but no later than
1 Business Day) after filing with the Commission, the Securities Administrator
will make available on its internet website a final executed copy of each Form
10-K prepared and filed by the Securities Administrator. The signing party at
the Master Servicer can be contacted at the address specified in Section 11.05.
The parties to this Agreement acknowledge that the performance by the Master
Servicer and the Securities Administrator of its duties under this Section
3.22(c) related to the timely preparation, arrangement for execution and filing
of Form 10-K is contingent upon such parties strictly observing all applicable
deadlines in the performance of their duties under this Section 3.22(c), Section
3.22(e), Section 3.20 and Section 3.21 and is also contingent upon the
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Servicers, the Custodian and any Servicing Function Participant strictly
observing deadlines no later than those set forth in this paragraph that are
applicable to the parties to this Agreement in the delivery to the Securities
Administrator of any necessary Additional Form 10-K Disclosure, any Compliance
Statement and any Assessment of Compliance and Attestation Report pursuant to
the related Servicing Agreements, any custodial agreement or any other
applicable agreement. Neither the Master Servicer nor the Securities
Administrator shall have any liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare, arrange for
execution and/or timely file such Form 10-K, where such failure results from the
Securities Administrator's inability or failure to receive, on a timely basis,
any information from any other party hereto or any Servicer or Servicing
Function Participant needed to prepare, arrange for execution or file such Form
10-K, not resulting from its own negligence, bad faith or willful misconduct.
(d) Within four (4) Business Days after the occurrence of an event
requiring disclosure on Form 8-K (each such event, a "Reportable Event"), and if
requested by the Depositor, the Securities Administrator shall prepare and file
on behalf of the Trust any Form 8-K, as required by the Exchange Act, provided
that the Depositor shall file the initial Form 8-Ks in connection with the
issuance of the Certificates. Any disclosure or information related to a
Reportable Event or that is otherwise required to be included on Form 8-K other
than the initial Form 8-Ks filed in connection with the issuance of the
Certificates ("Form 8-K Disclosure Information") shall be reported by the
parties set forth on Exhibit Q hereto to the Depositor and the Securities
Administrator and directed and approved by the Depositor pursuant to the
following paragraph, and the Securities Administrator will have no duty or
liability for any failure hereunder to determine or prepare any Form 8-K
Disclosure Information, or any Form 8-K, except as set forth in this Section
3.22(d).
As set forth on Exhibit Q hereto, no later than the end of business on the
2nd Business Day after the occurrence of a Reportable Event (i) the parties
described in Exhibit Q shall be required to provide to the Securities
Administrator (at xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx with a copy by facsimile
to 000-000-0000) and to the Depositor, to the extent known by a responsible
officer thereof, in XXXXX-compatible format, or in such other format as
otherwise agreed upon by the Securities Administrator and such party, any Form
8-K Disclosure Information, if applicable, together with an Additional
Disclosure Notification in the form attached hereto as Exhibit S and (ii) the
Depositor shall approve, as to form and substance, or disapprove, as the case
may be, the inclusion of the Form 8-K Disclosure Information. The Securities
Administrator shall compile all such information provided to it in a Form 8-K
prepared by it. The Securities Administrator has no duty under this Agreement to
monitor or enforce the performance by the parties listed on Exhibit Q of their
duties under this paragraph or proactively solicit or procure from such parties
any Form 8-K Disclosure Information. The Depositor will be responsible for any
reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Form 8-K Disclosure Information
on Form 8-K pursuant to this paragraph.
After preparing the Form 8-K, the Securities Administrator shall forward
electronically a copy of the Form 8-K to the Master Servicer and Depositor for
review. No later than the close of business New York City time on the 3rd
Business Day after the Reportable Event, the Depositor shall notify the
Securities Administrator in writing (which may be furnished electronically) of
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any changes to or approval of such Form 8-K. In the absence of receipt of any
written changes or approval, the Securities Administrator shall be entitled to
assume that such Form 8-K is in final form and the Securities Administrator may
proceed with the execution and filing of the Form 8-K. A duly authorized officer
of the Master Servicer shall sign the Form 8-K. If a Form 8-K cannot be filed on
time or if a previously filed Form 8-K needs to be amended, the Securities
Administrator will follow the procedures set forth in Section 3.22(h)(ii).
Promptly (but no later than 1 Business Day) after filing with the Commission,
the Securities Administrator will, make available on its internet website a
final executed copy of each Form 8-K prepared and filed by the Securities
Administrator. The signing party at the Master Servicer can be contacted at the
address specified in Section 11.05. The parties to this Agreement acknowledge
that the performance by the Securities Administrator of its duties under this
Section 3.22(d) related to the timely preparation, arrangement for execution and
filing of Form 8-K is contingent upon such parties strictly observing all
applicable deadlines in the performance of their duties under this Section
3.22(d) and also contingent upon the Servicers, the Custodian and any Servicing
Function Participant strictly observing deadlines no later than those set forth
in this paragraph that are applicable to the parties to this Agreement in the
delivery to the Securities Administrator of any necessary Form 8-K Disclosure
Information pursuant to the related Servicing Agreements, any custodial
agreement or any other applicable agreement. Neither the Master Servicer nor the
Securities Administrator shall have any liability for any loss, expense, damage,
claim arising out of or with respect to any failure to properly prepare, arrange
for execution and/or timely file such Form 8-K, where such failure results from
the Securities Administrator's inability or failure to receive, on a timely
basis, any information from any other party hereto or any Servicer, Custodian or
Servicing Function Participant needed to prepare, arrange for execution or file
such Form 8-K, not resulting from its own negligence, bad faith or willful
misconduct.
(e) Each Form 10-K shall include a certification (the "Xxxxxxxx-Xxxxx
Certification"), exactly as set forth in Exhibit M attached hereto, required to
be included therewith pursuant to the Xxxxxxxx-Xxxxx Act. The Securities
Administrator (if the Securities Administrator is not the same entity as the
Master Servicer) shall provide, and shall cause any Servicing Function
Participant engaged by it to provide, to the Person who signs the Xxxxxxxx-Xxxxx
Certification (the "Certifying Person"), by March 10th of each year in which the
Trust is subject to the reporting requirements of the Exchange Act and otherwise
within a reasonable period of time upon request, a certification (each, together
with such similar certification delivered by each Servicer as described in
Section 3.22(f), a "Back-up Certification"), in the form attached hereto as
Exhibit R, upon which the Certifying Person, the entity for which the Certifying
Person acts as an officer, and such entity's officers, directors and Affiliates
(collectively with the Certifying Person, "Certification Parties") can
reasonably rely. The senior officer of the Master Servicer in charge of the
master servicing function shall serve as the Certifying Person on behalf of the
Trust. Such officer of the Certifying Person can be contacted by email at
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx. In the event the Master Servicer, the
Securities Administrator or any Servicing Function Participant engaged by such
parties is terminated or resigns pursuant to the terms of this Agreement, or any
applicable sub-servicing agreement, as the case may be, such party shall provide
a Back-up Certification to the Certifying Person pursuant to this Section
3.22(e) with respect to the period of time it was subject to this Agreement or
any applicable sub-servicing agreement, as the case may be. Notwithstanding the
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foregoing, (i) the Master Servicer and the Securities Administrator shall not be
required to deliver a Back-Up Certification to each other if both are the same
Person and the Master Servicer is the Certifying Person and (ii) the Master
Servicer shall not be obligated to sign the Xxxxxxxx-Xxxxx Certification in the
event that it does not receive any Back-Up Certification required to be
furnished to it pursuant to this Section or any Servicing Agreement or Custodial
Agreement.
(f) Pursuant to the related Servicing Agreements, the Master Servicer shall
enforce the obligation of each Servicer to provide the Back-up Certification
required pursuant to each of the Servicing Agreements.
(g) Upon any filing with the Commission prepared and filed by the
Securities Administrator, the Securities Administrator shall make available to
the Depositor a copy of any such executed report, statement or information.
(h) (i) The obligations set forth in paragraphs (a) through (h) of this
Section shall only apply with respect to periods for which reports are required
to be filed with respect to the Trust under the Exchange Act. On or prior to
January 30 of the first year in which the Securities Administrator is able to do
so under applicable law, unless otherwise requested by the Depositor, the
Securities Administrator shall prepare and file with the Commission a Form 15
Suspension Notification executed by the Master Servicer with respect to the
Trust, with a copy to the Depositor. At the beginning of the calendar year after
the filing of a Form 15 Suspension Notification, if the Depositor or the
Certificate Registrar determines that the number of Certificateholders of the
Offered Certificates of record exceeds the number set forth in Section 15(d) of
the Exchange Act or the regulations promulgated pursuant thereto which would
cause the Trust to again become subject to the reporting requirements of the
Exchange Act, it shall promptly notify the Securities Administrator and the
Securities Administrator shall recommence preparing and filing reports on Form
8-K, Form 10-D and Form 10-K as required pursuant to this Section and the
then-current reporting requirements of the Exchange Act and the parties hereto
will again have the obligations set forth in paragraphs (a) through (h) of this
Section.
(ii) In the event that the Securities Administrator is unable to
timely file with the Commission all or any required portion of any Form
8-K, Form 10-D or Form 10-K required to be filed by this Agreement because
required disclosure information was either not delivered to it or delivered
to it after the delivery deadlines set forth in this Agreement or for any
other reason, the Securities Administrator will immediately electronically
notify the Depositor and the Master Servicer of such inability to make a
timely filing with the Commission. In the case of Form 10-D and Form 10-K,
the Securities Administrator, the Master Servicer, the Trustee and the
Depositor will cooperate to prepare and file a Form 12b-25 and a Form
10-D/A and Form 10-K/A as applicable, pursuant to Rule 12b-25 of the
Exchange Act. In the case of Form 8-K, the Securities Administrator will,
upon receipt of all required Form 8-K Disclosure Information and upon the
approval and direction of the Depositor, include such disclosure
information on the next Form 10-D. In the event that any previously filed
Form 8-K, Form 10-D or Form 10-K needs to be amended in connection with any
Additional Form 10-D Disclosure (other than, in the case of Form 10-D, for
the purpose of restating any Monthly Statement), Additional Form 10-K
Disclosure or Form 8-K Disclosure Information, the Securities Administrator
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will notify the Depositor within one calendar day of discovery and such
other parties to the transaction as are affected by such amendment, and
such parties will cooperate to prepare any necessary Form 8-K/A, Form
10-D/A or Form 10-K/A. Any Form 15, Form 12b-25 or any amendment to Form
8-K or Form 10-D shall be signed by a duly authorized officer (and a senior
officer with respect to the Form 10-K) of the Master Servicer. The parties
to this Agreement acknowledge that the performance by the Master Servicer
and the Securities Administrator of their duties under this Section 3.22(h)
related to the timely preparation, arrangement for execution and filing of
Form 15, a Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K
is contingent upon each such party performing its duties under this Section
3.22(h). Neither the Master Servicer nor the Securities Administrator shall
have any liability for any loss, expense, damage, claim arising out of or
with respect to any failure to properly prepare, arrange for execution
and/or timely file any such Form 15, Form 12b-25 or any amendments to Forms
8-K, Form 10-D or Form 10-K, where such failure results from the Securities
Administrator's inability or failure to receive, on a timely basis, any
information from any other party hereto or any Servicer, the Custodian or
any Servicing Function Participant needed to prepare, arrange for execution
or file such Form 15, Form 12b-25 or any amendments to Forms 8-K, Form 10-D
or Form 10-K, not resulting from its own negligence, bad faith or willful
misconduct.
(i) Notwithstanding the provision of Section 11.01, this Section 3.22 may
be amended without the consent of the Certificateholders.
ARTICLE IV
MASTER SERVICER'S CERTIFICATE
Section 4.01 Master Servicer's Certificate.
Each month, not later than 12:00 noon Eastern time on the 18th calendar day
of such month (or if such day is not a Business Day, the following Business
Day), the Master Servicer shall deliver to the Securities Administrator, a
Master Servicer's Certificate based solely on the information provided by the
Servicers (in substance and format mutually acceptable to the Master Servicer
and the Securities Administrator) certified by a Master Servicing Officer
setting forth the information necessary in order for the Securities
Administrator to perform its obligations under this Agreement. The Securities
Administrator may conclusively rely upon the information contained in a Master
Servicer's Certificate delivered by the Master Servicer for all purposes
hereunder and shall have no duty to verify or re-compute any of the information
contained therein.
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;REMIC ADMINISTRATION
Section 5.01 Distributions.
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On each Distribution Date, based solely on the information in the Master
Servicer's Certificate, the Securities Administrator shall distribute or be
deemed to distribute out of the Certificate Account, the Lower-Tier Certificate
Sub-Account or the Upper-Tier Certificate Sub-Account, as applicable (to the
extent funds are available therein), to each Certificateholder of record on the
related Record Date (other than as provided in Section 10.01 respecting the
final distribution) (a) by check mailed to such Certificateholder entitled to
receive a distribution on such Distribution Date at the address appearing in the
Certificate Register, or (b) upon written request by the Holder of a Certificate
(other than a Residual Certificate), by wire transfer or by such other means of
payment as such Certificateholder and the Securities Administrator shall agree
upon, such Certificateholder's Percentage Interest in the amount to which the
related Class of Certificates is entitled in accordance with the priorities set
forth below in Section 5.02.
None of the Holders of any Class of Certificates, the Depositor, the Master
Servicer, the Securities Administrator or the Trustee shall in any way be
responsible or liable to Holders of any Class of Certificates in respect of
amounts properly previously distributed on any such Class.
Amounts distributed with respect to any Class of Certificates shall be
applied first to the distribution of interest thereon and then to principal
thereon.
Section 5.02 Priorities of Distributions on the Certificates.
(a) On each Distribution Date, the Securities Administrator shall withdraw
from the Certificate Account (to the extent funds are available therein) (1) to
the extent not previously paid, the amounts payable to the Master Servicer, the
Securities Administrator and the Trustee pursuant to Section 3.09(e) and (f) and
Section 3.11 and shall pay such funds to itself, the Master Servicer and the
Trustee, as applicable, and (2) based solely on the information contained in the
Master Servicer's Certificate, the Pool Distribution Amount for the related Loan
Group, and shall apply such funds, first, to distributions in respect of the
Uncertificated Lower-Tier Interests as specified in this Section 5.02(a) and
then to distributions on the Certificates, paying the Group 1 Certificates and
Group 1 Components solely from the Pool Distribution Amount for Loan Group 1,
paying the Group 2 Certificates and Group 2 Components solely from the Pool
Distribution Amount for Loan Group 2, paying the Group 3 Certificates and the
Group 3 Components solely from the Pool Distribution Amount for Loan Group 3,
paying the Group 4 Certificates solely from the Pool Distribution Amount for
Loan Group 4, paying the Class X-B Certificates from the remaining combined Pool
Distribution Amounts from the the Crossed Loan Groups and paying the Class 4-B
Certificates from the remaining Pool Distribution Amount from Loan Group 4, in
the following order of priority and to the extent of such funds:
(i) concurrently, to each Class of Senior Certificates and Components
of the related Group, an amount allocable to interest equal to the Interest
Distribution Amount for each such Class and the Component Interest
Distribution Amount for each such IO Component and any shortfall being
allocated among such Classes and Components in proportion to the amount of
the Interest Distribution Amount or Component Interest Distribution Amount
that would have been distributed in the absence of such shortfall;
(ii) (a) concurrently, in the case of Group 1 (x) to the Senior Non-PO
Certificates of Group 1 and (y) to the Class 1-X-PO Component, pro rata,
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based on the Senior Principal Distribution Amount for Group 1 and
applicable PO Principal Amount, (1) to the Senior Non-PO Certificates, in
an aggregate amount up to the Senior Principal Distribution Amount for Loan
Group 1, such distribution to be allocated among such Classes in accordance
with Section 5.02(b) and (2) to the Class 1-X-PO Component, up to the
applicable PO Principal Amount, (b) concurrently, in the case of Group 2
(x) to the Senior Non-PO Certificates of Group 2 and (y) to the Class
2-X-PO Component, pro rata, based on the Senior Principal Distribution
Amount for Group 2 and applicable PO Principal Amount, (1) to the Senior
Non-PO Certificates, in an aggregate amount up to the Senior Principal
Distribution Amount for Loan Group 2, such distribution to be allocated
among such Classes in accordance with Section 5.02(b) and (2) to the Class
2-X-PO Component, up to the applicable PO Principal Amount, (c)
concurrently, in the case of Group 3 (x) to the Senior Non-PO Certificates
of Group 3 and (y) to the Class 3-X-PO Component, pro rata, based on the
Senior Principal Distribution Amount for Group 3 and applicable PO
Principal Amount, (1) to the Senior Non-PO Certificates, in an aggregate
amount up to the Senior Principal Distribution Amount for Loan Group 3,
such distribution to be allocated among such Classes in accordance with
Section 5.02(b) and (2) to the Class 3-X-PO Component, up to the applicable
PO Principal Amount and (d) concurrently, in the case of Group 4 (x) to the
Senior Non-PO Certificates of Group 4 and (y) to the Class 4-PO
Certificates, pro rata, based on the Senior Principal Distribution Amount
for Group 4 and applicable PO Principal Amount, (1) to the Senior Non-PO
Certificates, in an aggregate amount up to the Senior Principal
Distribution Amount for Loan Group 4, such distribution to be allocated
among such Classes in accordance with Section 5.02(b) and (2) to the Class
4-X-PO Certificates, up to the applicable PO Principal Amount;
(iii) (a) with respect to Group 1, Group 2 and Group 3, to the PO
Component of each Related Group, to pay any applicable PO Deferred Amounts
(after giving effect to the distribution to such PO Component of the PO
Recovery for the related Loan Group), up to the Subordinate Principal
Distribution Amounts for the Crossed Loan Groups from amounts otherwise
distributable to the Class X-B Certificates, first to the Class X-B-6
Certificates pursuant to clause (iv)(A)(12) below, second to the Class
X-B-5 Certificates, pursuant to clause (iv)(A)(10) below, third to the
Class X-B-4 Certificates, pursuant to clause (iv)(A)(8) below, fourth to
the Class X-B-3 Certificates, pursuant to clause (iv)(A)(6) below, fifth to
the Class X-B-2 Certificates, pursuant to clause (iv)(A)(4) below and
finally to the Class X-B-1 Certificates, pursuant to clause (iv)(A)(2)
below and (b) with respect to Group 4, to the Class 4-PO Certificates, to
pay any applicable PO Deferred Amounts (after giving effect to the
distribution to the Class 4-PO Certificates of the PO Recovery for Loan
Group 4), up to the Subordinate Principal Distribution Amount for the Loan
Group 4 from amounts otherwise distributable to the Class 4-B Certificates,
first to the Class 4-B-6 Certificates pursuant to clause (iv)(B)(12) below,
second to the Class 4-B-5 Certificates, pursuant to clause (iv)(B)(10)
below, third to the Class 4-B-4 Certificates, pursuant to clause (iv)(B)(8)
below, fourth to the Class 4-B-3 Certificates, pursuant to clause
(iv)(B)(6) below, fifth to the Class 4-B-2 Certificates, pursuant to clause
(iv)(B)(4) below and finally to the Class 4-B-1 Certificates, pursuant to
clause (iv)(B)(2) below;
(iv) concurrently, as follows:
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(A) to each Class of Class X-B Certificates, subject to paragraph (d)
below, in the following order of priority:
(1) to the Class X-B-1 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class for
such Distribution Date;
(2) to the Class X-B-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date less
any amount used to pay the applicable PO Deferred Amounts pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(3) to the Class X-B-2 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class for
such Distribution Date;
(4) to the Class X-B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date less
any amount used to pay the applicable PO Deferred Amounts pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(5) to the Class X-B-3 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class for
such Distribution Date;
(6) to the Class X-B-3 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date less
any amount used to pay the applicable PO Deferred Amounts pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(7) to the Class X-B-4 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class for
such Distribution Date;
(8) to the Class X-B-4 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date less
any amount used to pay the applicable PO Deferred Amounts pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(9) to the Class X-B-5 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class for
such Distribution Date;
(10) to the Class X-B-5 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date less
any amount used to pay the applicable PO Deferred Amounts pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
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(11) to the Class X-B-6 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class for
such Distribution Date; and
(12) to the Class X-B-6 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date less
any amount used to pay the applicable PO Deferred Amounts pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(B) to each Class of Class 4-B Certificates, subject to paragraph
paragraph (d) below, in the following order of priority:
(1) to the Class 4-B-1 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class for
such Distribution Date;
(2) to the Class 4-B-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date less
any amount used to pay the applicable PO Deferred Amounts pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(3) to the Class 4-B-2 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class for
such Distribution Date;
(4) to the Class 4-B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date less
any amount used to pay the applicable PO Deferred Amounts pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(5) to the Class 4-B-3 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class for
such Distribution Date;
(6) to the Class 4-B-3 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date less
any amount used to pay the applicable PO Deferred Amounts pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(7) to the Class 4-B-4 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class for
such Distribution Date;
(8) to the Class 4-B-4 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date less
any amount used to pay the applicable PO Deferred Amounts pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
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(9) to the Class 4-B-5 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class for
such Distribution Date;
(10) to the Class 4-B-5 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date less
any amount used to pay the applicable PO Deferred Amounts pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(11) to the Class 4-B-6 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class for
such Distribution Date; and
(12) to the Class 4-B-6 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date less
any amount used to pay the applicable PO Deferred Amounts pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(v) to the Holder of the Class 1-A-R Certificate (in respect of the
Class UR Interest or the Class LR Interest, as applicable), any amounts
remaining in the Upper-Tier Certificate Sub-Account and the Lower-Tier
Certificate Sub-Account and any remaining Pool Distribution Amounts.
No Class of Certificates or Components will be entitled to any
distributions with respect to the amount payable pursuant to clause (ii) of the
definition of "Interest Distribution Amount" or clause (ii) of the definition of
"Component Interest Distribution Amount" after its Class Certificate Balance or
Notional Amount, as the case may be, has been reduced to zero.
All distributions in respect of the Interest Distribution Amount for a
Class or the Component Interest Distribution Amount for an IO Component will be
applied first with respect to the amount payable pursuant to clause (i) of the
definition of "Interest Distribution Amount," or "Component Interest
Distribution Amount," as applicable, and second with respect to the amount
payable pursuant to clause (ii) of such definitions.
On each Distribution Date, the Securities Administrator shall distribute
any Reimbursement Amount received with respect to a Loan Group sequentially to
each related Class of Certificates then outstanding which bore the loss to which
such Reimbursement Amount relates, beginning with the most senior of such
Classes of Certificates, up to, with respect to each Class, the amount of loss
borne by such Class. Any Reimbursement Amount remaining after the application
described in the preceding sentence shall be included in the Pool Distribution
Amount for the applicable Loan Group.
On each Distribution Date, the Securities Administrator shall distribute
any PO Recovery with respect to Loan Group 1 to the Class 1-X-PO Component, any
PO Recovery with respect to Loan Group 2 to the Class 2-X-PO Component, any PO
Recovery with respect to Loan Group 3 to the Class 3-X-PO Component and any PO
Recovery with respect to Loan Group 4 to the Class 4-PO Certificates.
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In the event that on any Distribution Date, the Subordinate Principal
Distribution Amounts for the Crossed Loan Group are insufficient to reduce the
PO Deferred Amounts of the PO Components to zero, the amount that is available
shall be distributed among such Components pro rata based on PO Deferred
Amounts.
Distributions on the Uncertificated Lower-Tier Interests. On each
Distribution Date, Uncertificated Accrued Interest shall be deemed distributed
in respect of the Uncertificated Lower-Tier Interests (other than the Class
1-LPO Interest, the Class 2-LPO Interest, the Class 3-LPO Interest and the Class
4-LPO Interest) at the Uncertificated Lower-Tier REMIC Pass-Through Rate
thereon, plus any amounts in respect thereof remaining unpaid from previous
Distribution Dates. For purposes of calculating Uncertificated Accrued Interest
in respect of each Uncertificated Lower-Tier Interest and any Distribution Date,
Non-Supported Interest Shortfalls and Relief Act Reductions with respect to the
Mortgage Loans shall be allocated to the related Uncertificated Lower-Tier
Interest in the same relative proportions as interest is allocated to such
Uncertificated Lower-Tier Interest. Any Non-Supported Interest Shortfalls and
Relief Act Reductions allocated to the Uncertificated Lower-Tier Interests
pursuant to this paragraph shall be (a) from Non-Supported Interest Shortfalls
and Relief Act Reductions allocated to the Crossed Loan Group in the case of
Uncertificated Lower-Tier Interests beginning with the numeral "1," "2" and "3"
and (b) from Non-Supported Interest Shortfalls and Relief Act Reductions
allocated to Loan Group 4 in the case of Uncertificated Lower-Tier Interests
beginning with the numeral "4."
All distributions of principal shall be made first to the Class 1-LPO
Interest, Class 2-LPO Interest, Class 3-LPO Interest and Class 4-LPO Interest so
as to keep the Uncertificated Balances thereof at all times equal to the Class
Certificate Balance or Component Balances of the Class 1-X-PO, Class 2-X-PO and
Class 3-X-PO Components and Class 4-PO Certificates, respectively; second, to
the Class 1-LS Interest, the Class 2-LS Interest and the Class 3-LS Interest so
as to keep the Uncertificated Balances thereof (computed to eight decimal
places) equal to 0.100% of the Group Subordinate Amount for Loan Group 1, Loan
Group 2 and Loan Group 3, respectively (except that if any such amount is
greater than on the preceding Distribution Date, the least amount of principal
shall be distributed to the Class 1-LS Interest, the Class 2-LS Interest and the
Class 3-LS Interest, such that the Subordinate Balance Ratio is maintained) and
third, any remaining principal to the Class 1-L Interest, Class 2-L Interest,
Class 3-L Interest and Class 4-L Interest. Any distributions of principal made
to the Uncertificated Lower-Tier Interests pursuant to this paragraph shall be
made from the Group 1 Mortgage Loans to the Uncertificated Lower-Tier Interests
beginning with the numeral "1," from the Group 2 Mortgage Loans to the
Uncertificated Lower-Tier Interests beginning with the numeral "2," from Group 3
Mortgage Loans to the Uncertificated Lower-Tier Interests beginning with the
numeral "3" and from the Group 4 Mortgage Loans to the Uncertificated Lower-Tier
Interests beginning with the numeral "4," in the case of Group 1 and Group 2,
with respect to Apportioned Mortgage Loans therein based on the related
Applicable Percentage.
Realized Losses with respect to the Loan Groups shall be applied after all
distributions have been made on each Distribution Date first, to the Class 1-LPO
Interest, Class 2-LPO Interest, Class 3-LPO Interest and Class 4-LPO Interest so
as to keep the Uncertificated Balances thereof at all times equal to the Class
Certificate Balance or Component Balances of the Class 1-X-PO, Class 2-X-PO and
Class 3-X-PO Components and Class 4-PO Certificates, respectively, second, to
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the Class 1-LS Interest, the Class 2-LS Interest and the Class 3-LS Interest so
as to keep the Uncertificated Balances thereof (computed to eight decimal
places) equal to 0.100% of the Group Subordinate Amount for Loan Group 1, Loan
Group 2 and Loan Group 3, respectively (except that if any such amount is
greater than on the preceding Distribution Date, the least amount of Realized
Losses shall be allocated to the Class 1-LS Interest, the Class 2-LS Interest
and the Class 3-LS Interest, such that the Subordinate Balance Ratio is
maintained) and third, the remaining Realized Losses shall be allocated to the
Class 1-L Interest, Class 2-L Interest, Class 3-L Interest and Class 4-L
Interest. Any Realized Losses allocated to the Uncertificated Lower-Tier
Interests pursuant to this paragraph shall be (a) from Realized Losses allocated
to Loan Group 1 in the case of Uncertificated Lower-Tier Interests beginning
with the numeral "1," (b) from Realized Losses allocated to Loan Group 2 in the
case of Uncertificated Lower-Tier Interests beginning with the numeral "2," (c)
from Realized Losses allocated to Loan Group 3 in the case of Uncertificated
Lower-Tier Interests beginning with the numeral "3" and (d) from Realized Losses
allocated to Loan Group 4 in the case of Uncertificated Lower-Tier Interests
beginning with the numeral "4," in the case of Group 1 and Group 2, with respect
to Apportioned Mortgage Loans therein based on the related Applicable
Percentage.
Recoveries and Reimbursement Amounts received with respect to the Loan
Groups shall be applied to the Uncertificated Lower-Tier Interests in a manner
analogous to the application of Realized Losses to the Uncertificated Lower-Tier
Interests.
As of any date, the Uncertificated Balance of the Class 1-L and Class 1-LS
Interest shall equal the Pool Principal Balance (Non-PO Portion) of Loan Group
1. As of any date, the Uncertificated Balance of the Class 2-L and Class 2-LS
Interest shall equal the Pool Principal Balance (Non-PO Portion) of Loan Group
2. As of any date, the Uncertificated Balance of the Class 3-L and Class 3-LS
Interest shall equal the Pool Principal Balance (Non-PO Portion) of Loan Group
3. As of any date, the Uncertificated Balance of the Class 4-L Interest shall
equal the Pool Principal Balance (Non-PO Portion) of Loan Group 4. As of any
date, the Uncertificated Balance of the Class 1-LPO Interest will be equal to
the Component Balance of the Class 1-X-PO Component. As of any date, the
Uncertificated Balance of the Class 2-LPO Interest will be equal to the
Component Balance of the Class 2-X-PO Component. As of any date, the
Uncertificated Balance of the Class 3-LPO Interest will be equal to the
Component Balance of the Class 3-X-PO Component. As of any date, the
Uncertificated Balance of the Class 4-LPO Interest will be equal to the
Component Balance of the Class 4-PO Certificates.
Amounts distributed to the Uncertificated Lower-Tier Interests in respect
of principal and interest with respect to any Distribution Date are referred to
herein collectively as the "Lower-Tier Distribution Amount."
Distributions on the Upper-Tier Interests. Each Upper-Tier Regular Interest
will be entitled to receive interest and principal payments at the times and in
the amounts equal to those made on the Certificate or Component to which it
corresponds.
(b) (i) With respect to Group 1:
On each Distribution Date prior to the Senior Credit Support Depletion
Date for the Crossed Groups, the amount distributable to the Group 1 Senior
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Certificates pursuant to Section 5.02(a)(ii)(a)(1) for such Distribution
Date, will be distributed, sequentially, as follows:
first, to the Class 1-A-R Certificate, until its Class Certificate
Balance has been reduced to zero; and
second, concurrently, to the Class 1-A-1 and Class 1-A-2 Certificates,
pro rata, until their Class Certificate Balances have been reduced to zero;
(ii) With respect to Group 2:
On each Distribution Date prior to the Senior Credit Support Depletion
Date for the Crossed Groups, the amount distributable to the Group 2 Senior
Certificates pursuant to Section 5.02(a)(ii)(b)(1) for such Distribution
Date, will be distributed, concurrently, to the Class 2-A-1, Class 2-A-2
and Class 2-A-3 Certificates, pro rata, until their Class Certificate
Balances have been reduced to zero;
(iii) With respect to the Group 3:
On each Distribution Date prior to the Senior Credit Support Depletion
Date for the Crossed Groups, the amount distributable to the Group 3 Senior
Certificates pursuant to Section 5.02(a)(ii)(c)(1) for such Distribution
Date, will be distributed, concurrently, to the Class 3-A-1 and Class 3-A-2
Certificates, pro rata, until their Class Certificate Balances have been
reduced to zero;
(iv) With respect to the Group 4:
On each Distribution Date prior to the Senior Credit Support Depletion
Date for the Crossed Groups, the amount distributable to the Senior Non-PO
Certificates of Group 4 pursuant to Section 5.02(a)(ii)(d)(1) for such
Distribution Date, will be distributed, concurrently, to the Class 4-A-1,
Class 4-A-2 and Class 4-A-3 Certificates, pro rata, until their Class
Certificate Balances have been reduced to zero;
On each Distribution Date on or after the applicable Senior Credit Support
Depletion Date, notwithstanding the allocation and priority set forth above, the
portion of the Pool Distribution Amount with respect to a Loan Group available
to be distributed as principal of the Senior Non-PO Certificates of the Related
Group shall be distributed concurrently, as principal, on such Classes, pro
rata, on the basis of their respective Class Certificate Balances, until the
Class Certificate Balances thereof are reduced to zero.
The Class X-IO and Class 4-IO Certificates are Interest Only Certificates
and are not entitled to distributions in respect of principal.
(v) Notwithstanding the foregoing, on each Distribution Date prior to
the Senior Credit Support Depletion Date for the Crossed Groups but on or
after the date on which the aggregate Class Certificate Balance of the
Senior Non-PO Certificates of a Crossed Group has been reduced to zero,
amounts otherwise distributable as principal payments from the Related Loan
Group on the Class X-B Certificates will be paid as principal to the
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remaining Classes of Senior Non-PO Certificates of the other Crossed Group
together with the applicable Senior Principal Distribution Amount in
accordance with the priorities set forth for the applicable Crossed Group
in (b)(i), (ii) or (iii) above, provided that on such Distribution Date (a)
the Aggregate Crossed Subordinate Percentage for such Distribution Date is
less than twice the initial Aggregate Crossed Subordinate Percentage or (b)
the outstanding principal balance of the Crossed Loan Group Mortgage Loans
(including, for this purpose, any such Mortgage Loans in foreclosure, any
related REO Property related to such Mortgage Loans and any such 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 equal to or greater than 50%. In addition, after
giving effect to the preceding sentence, if on any Distribution Date the
Class Certificate Balances of the Senior Non-PO Certificates of a Crossed
Group is greater than the Adjusted Pool Amount (Non-PO Portion) of the
Related Loan Group (any such Group, the "Undercollateralized Group" and any
such excess, the "Undercollateralized Amount"), all amounts otherwise
distributable as principal on the Class X-B Certificates pursuant to
Section 5.02(a)(iv)(A)(12), (10), (8), (6), (4) and (2), in that order,
will be paid as principal to the Senior Non-PO Certificates of the
Undercollateralized Group together with the applicable Senior Principal
Distribution Amount in accordance with the priorities set forth for the
applicable Group above under (b)(i), (ii) or (iii) until the aggregate
Class Certificate Balance of the Senior Non-PO Certificates of the
Undercollateralized Group equals the Adjusted Pool Amount (Non-PO Portion)
of the Related Loan Group. Also, the amount of any Class Unpaid Interest
Shortfalls and Component Unpaid Interest Shortfalls with respect to the
Undercollateralized Group (including any Class Unpaid Interest Shortfalls
and Component Unpaid Interest Shortfalls for such Distribution Date) will
be paid to the Undercollateralized Group pursuant to Section 5.02(a)(i)
prior to the payment of any Undercollateralized Amount from amounts
otherwise distributable as principal on the Class X-B Certificates pursuant
to Section 5.02(a)(iv)(A)(12), (10), (8), (6), (4) and (2), in that order.
Such amount will be paid to the Senior Non-PO Certificates and IO Component
of such Undercollateralized Group in accordance with the priorities set
forth in Section 5.02(a)(i) up to their Interest Distribution Amounts or
Component Interest Distribution Amounts for such Distribution Date. The PO
Deferred Amounts for the PO Components will be paid from amounts otherwise
distributable as principal on the Class X-B Certificates before any
payments are made pursuant to this paragraph.
(c) On each Distribution Date, Accrued Certificate Interest for each Class
of Certificates (other than the Class X-IO Certificates) and Accrued Component
Interest for each IO Component for such Distribution Date shall be reduced by
such Class' or Component's pro rata share, based on such Class' Interest
Distribution Amount or Component's Component Interest Distribution Amount for
such Distribution Date, without taking into account the allocation made by this
Section 5.02(c), of an amount equal to the sum of (A) Non-Supported Interest
Shortfalls on the Crossed Loan Groups Mortgage Loans (in the case of the Crossed
Groups and the Class X-B Certificates) or Group 4 Mortgage Loans (in the case of
Group 4 and the Class 4-B Certificates) with respect to such Distribution Date,
(B) on and after the applicable Senior Credit Support Depletion Date, the sum,
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with respect to each Mortgage Loan contributing to or in the Related Loan Group,
of the applicable Designated Interest Percentage for such Mortgage Loan and Loan
Group of any other Realized Loss on such Mortgage Loan allocable to interest and
(C) Relief Act Reductions incurred on the Crossed Loan Groups Mortgage Loans (in
the case of the Crossed Loan Groups and the Class X-B Certificates) or the Group
4 Mortgage Loans (in the case of Group 4 and the Class 4-B Certificates) with
respect to such Distribution Date.
(d) Notwithstanding the priority and allocation contained in Section
5.02(a)(iv), if with respect to any Class of Class X-B or Class 4-B Certificates
on any Distribution Date, (i) the aggregate of the Class Certificate Balances of
the Class X-B Certificates or Class 4-B Certificates, as the case may be,
immediately prior to such Distribution Date which have a lower payment priority
than such Class, divided by (ii) the aggregate Pool Principal Balance (Non-PO
Portion) for the Crossed Loan Groups (in the case of the Class X-B Certificates)
or Loan Group 3 (in the case of the Class 4-B Certificates), as the case may be,
immediately prior to such Distribution Date (for each Class, the "Fractional
Interest") is less than the Original Fractional Interest for such Class, no
distribution of principal will be made to any Classes of the Class X-B
Certificates or the Class 4-B Certificates, as the case may be, which have a
lower payment priority than such Class (the "Restricted Classes") and the Class
Certificate Balances of the Restricted Classes will not be used in determining
the Pro Rata Share for the Class X-B Certificates or the Class 4-B Certificates,
as the case may be, that are not Restricted Classes. If the aggregate Class
Certificate Balance of the Class X-B Certificates or the Class 4-B Certificates,
as the case may be, that are not Restricted Classes is reduced to zero,
notwithstanding the previous sentence, any funds remaining will be distributed
sequentially to the Class X-B Certificates or the Class 4-B Certificates, as the
case may be, that are Restricted Classes in order of their payment priority
(beginning with the Class of the Class X-B Certificates or the Class 4-B
Certificates, as the case may be, that is a Restricted Class then outstanding
with the highest payment priority).
Section 5.03 [Reserved].
Section 5.04 Allocation of Losses.
(a) No later than five (5) Business Days prior to the related Distribution
Date, the Master Servicer shall inform the Securities Administrator in writing
with respect to each Mortgage Loan: (1) whether any Realized Loss is a Deficient
Valuation or a Debt Service Reduction, (2) of the amount of such loss or
Deficient Valuation, or of the terms of such Debt Service Reduction and (3) with
respect to each Loan Group, the sum, with respect to each Mortgage Loan
contributing to or in such Loan Group, of the Applicable Percentage of the
amount of Realized Losses on such Mortgage Loan. Based on such information, the
Securities Administrator shall determine the total amount of Realized Losses on
the Mortgage Loans allocable to each Loan Group with respect to the related
Distribution Date. Realized Losses shall be allocated to the Certificates by a
reduction in the Class Certificate Balances of the designated Classes pursuant
to Section 5.04(b) below.
(b) Allocation of Losses on the Certificates.
(i) (1) The Component Balance of the Class 1-X-PO Component shall be
reduced on each Distribution Date by the amount, if any, by which the
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Component Balance of the Class 1-X-PO Component (after giving effect to the
amount to be distributed as a distribution of principal on such
Distribution Date) exceeds the Adjusted Pool Amount (PO Portion) for Loan
Group 1 for such Distribution Date, (2) the Component Balance of the Class
2-X-PO Component shall be reduced on each Distribution Date by the amount,
if any, by which the Component Balance of the Class 2-X-PO Component (after
giving effect to the amount to be distributed as a distribution of
principal on such Distribution Date) exceeds the Adjusted Pool Amount (PO
Portion) for Loan Group 2 for such Distribution Date, (3) the Component
Balance of the Class 3-X-PO Component shall be reduced on each Distribution
Date by the amount, if any, by which the Component Balance of the Class
3-X-PO Component (after giving effect to the amount to be distributed as a
distribution of principal on such Distribution Date) exceeds the Adjusted
Pool Amount (PO Portion) for Loan Group 3 for such Distribution Date and
(4) the Class Certificate Balance of the Class 4-PO Certificates shall be
reduced on each Distribution Date by the amount, if any, by which the Class
Certificate Balance of the Class 4-PO Certificates (after giving effect to
the amount to be distributed as a distribution of principal on such
Distribution Date) exceeds the Adjusted Pool Amount (PO Portion) for Loan
Group 4 for such Distribution Date.
The Class Certificate Balance of the Class of Class X-B Certificates
then outstanding with the lowest payment priority shall be reduced or
increased on each Distribution Date by the amount, if any, necessary such
that the aggregate of the Class Certificate Balances of all outstanding
Classes of Senior Non-PO Certificates of the Crossed Groups and the Class
X-B Certificates (after giving effect to the amount to be distributed as
distributions of principal and the allocation of PO Deferred Amounts on
such Distribution Date) equals the aggregate Adjusted Pool Amount (Non-PO
Portion) for the Crossed Loan Groups for such Distribution Date.
The Class Certificate Balance of the Class of Class 4-B Certificates
then outstanding with the lowest payment priority shall be reduced or
increased on each Distribution Date by the amount, if any, necessary such
that the aggregate of the Class Certificate Balances of all outstanding
Classes of the Senior Non PO Certificates in Group 4 and the Class 4-B
Certificates (after giving effect to the amount to be distributed as
distributions of principal on such Distribution Date) equals the Adjusted
Pool Amount (Non-PO Portion) for Loan Group 4 for such Distribution Date.
After the Senior Credit Support Depletion Date for the Crossed Groups,
the Class Certificate Balances of all Classes of Senior Non-PO Certificates
of a Crossed Group shall be reduced or increased on each Distribution Date
by the amount, if any, necessary such that the aggregate of the Class
Certificate Balances of all Classes of Senior Non-PO Certificates (after
giving effect to the amount to be distributed as distributions of principal
on such Distribution Date) in such Group equals the Adjusted Pool Amount
(Non-PO Portion) for the Related Loan Group for such Distribution Date.
After the Senior Credit Support Depletion Date for Group 4, the Class
Certificate Balances of all Classes of the Senior Non-PO Certificates in
Group 4 shall be reduced or increased on each Distribution Date by the
amount, if any, necessary such that the aggregate of the Class Certificate
Balances of the Senior Non-PO Certificates in Group 4 (after giving effect
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to the amount to be distributed as distributions of principal on such
Distribution Date) equals the Adjusted Pool Amount (Non-PO Portion) for the
Loan Group 4 for such Distribution Date.
Any such reduction or increase shall be allocated among the Senior
Non-PO Certificates of a Group, based on their Class Certificate Balances
immediately prior to such Distribution Date, until the Class Certificate
Balances thereof have been reduced to zero.
(ii) Any reduction or increase in the Class Certificate Balance of a
Class of Certificates or Component Balance pursuant to Section 5.04(b)(i)
above shall be allocated among the Certificates of such Class in proportion
to their respective Percentage Interests.
(iii) The calculation of the amount to be distributed as principal to
the Class X-B or Class 4-B Certificates with respect to a Distribution Date
(the "Calculated Principal Distribution") shall be made prior to the
allocation of any Realized Losses with respect to the related Mortgage
Loans for such Distribution Date; provided, however, the actual payment of
principal to the Class X-B or Class 4-B Certificates shall be made
subsequent to the allocation of Realized Losses with respect to the related
Mortgage Loans for such Distribution Date. In the event that after the
allocation of Realized Losses with respect to the Mortgage Loans in the
Crossed Loan Groups or Loan Group 4 for a Distribution Date, the Calculated
Principal Distribution for a Class of Class X-B or Class 4-B Certificates,
as applicable, is greater than the Class Certificate Balance of such Class,
the excess shall be distributed (i) first, sequentially, to the Class X-B
or Class 4-B Certificates, as applicable, then outstanding (beginning with
the Class of Class X-B or Class 4-B Certificates, as applicable, then
outstanding with the highest payment priority) until the respective Class
Certificate Balance of each such Class is reduced to zero and (ii) then to
(x) the Senior Non-PO Certificates of the Crossed Groups, pro rata, on the
basis of their respective Class Certificate Balances (in the case of the
Class X-B Certificates) or (y) the Senior Non-PO Certificates of Group 4,
pro rata, on the basis of the their respective Class Certificate Balances
(in the case of the Class 4-B Certificates).
(iv) After the Senior Credit Support Depletion Date for the Crossed
Groups or Group 4, as the case may be:
(A) On any Distribution Date on which the Class 1-A-2 Loss
Allocation Amount is greater than zero, the Class Certificate Balance
of the Class 1-A-2 Certificates will be reduced by the Class 1-A-2
Loss Allocation Amount and, notwithstanding Section 5.04(b)(i), the
Class Certificate Balance of the Class 1-A-1 Certificates will not be
reduced by the Class 1-A-2 Loss Allocation Amount. Notwithstanding the
foregoing, on any Distribution Date in which the Class 1-A-1 Loss
Amount exceeds the Class Certificate Balance of the Class 1-A-2
Certificates prior to any reduction for the Class 1-A-2 Loss
Allocation Amount, such excess will be distributed in reduction of the
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Class Certificate Balance of the Class 1-A-1 Certificates. Any
increase in the Class Certificate Balance allocated to the Class 1-A-1
Certificates pursuant to Section 5.04(b)(i) will instead increase the
Class Certificate Balance of the Class 1-A-2 Certificates.
(B) On any Distribution Date on which the Class 2-A-2 Loss
Allocation Amount is greater than zero, the Class Certificate Balance
of the Class 2-A-2 Certificates will be reduced by the Class 2-A-2
Loss Allocation Amount and, notwithstanding Section 5.04(b)(i), the
Class Certificate Balance of the Class 2-A-1 Certificates will not be
reduced by the Class 2-A-2 Loss Allocation Amount. Notwithstanding the
foregoing, on any Distribution Date in which the Class 2-A-1 Loss
Amount exceeds the Class Certificate Balance of the Class 2-A-2
Certificates prior to any reduction for the Class 2-A-2 Loss
Allocation Amount, such excess will be distributed in reduction of the
Class Certificate Balance of the Class 2-A-1 Certificates. On or after
any Distribution Date on which the Class 2-A-2 Loss Allocation Amount
is greater than zero, any increase in the Class Certificate Balance
allocated to the Class 2-A-1 Certificates pursuant to Section
5.04(b)(i) will instead increase the Class Certificate Balance of the
Class 2-A-2 Certificates.
(C) On any Distribution Date on which the Class 2-A-3 Loss
Allocation Amount is greater than zero, the Class Certificate Balance
of the Class 2-A-3 Certificates will be reduced by the Class 2-A-3
Loss Allocation Amount and, notwithstanding Section 5.04(b)(i), the
Class Certificate Balances of the Class 2-A-1 and Class 2-A-2
Certificates will not be reduced by the Class 2-A-3 Loss Allocation
Amount. Notwithstanding the foregoing, on any Distribution Date in
which the sum of the Class 2-A-1 Loss Amount and the Class 2-A-2 Loss
Amount exceeds the Class Certificate Balance of the Class 2-A-3
Certificates prior to any reduction for the Class 2-A-3 Loss
Allocation Amount, such excess will be distributed in reduction of the
Class Certificate Balance of the Class 2-A-2 Certificates. Any
increase in the Class Certificate Balance allocated to the Class 2-A-1
or Class 2-A-2 Certificates pursuant to Section 5.04(b)(i) will
instead increase the Class Certificate Balance of the Class 2-A-3
Certificates.
(D) On any Distribution Date on which the Class 3-A-2 Loss
Allocation Amount is greater than zero, the Class Certificate Balance
of the Class 3-A-2 Certificates will be reduced by the Class 3-A-2
Loss Allocation Amount and, notwithstanding Section 5.04(b)(i), the
Class Certificate Balance of the Class 3-A-1 Certificates will not be
reduced by the Class 3-A-2 Loss Allocation Amount. Notwithstanding the
foregoing, on any Distribution Date in which the Class 3-A-1 Loss
Amount exceeds the Class Certificate Balance of the Class 3-A-2
Certificates prior to any reduction for the Class 3-A-2 Loss
Allocation Amount, such excess will be distributed in reduction of the
Class Certificate Balance of the Class 3-A-1 Certificates. Any
increase in the Class Certificate Balance allocated to the Class 3-A-1
Certificates pursuant to Section 5.04(b)(i) will instead increase the
Class Certificate Balance of the Class 3-A-2 Certificates.
(E) On any Distribution Date on which the Class 4-A-2 Loss
Allocation Amount is greater than zero, the Class Certificate Balance
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of the Class 4-A-2 Certificates will be reduced by the Class 4-A-2
Loss Allocation Amount and, notwithstanding Section 5.04(b)(i), the
Class Certificate Balance of the Class 4-A-1 Certificates will not be
reduced by the Class 4-A-2 Loss Allocation Amount. Notwithstanding the
foregoing, on any Distribution Date in which the Class 4-A-1 Loss
Amount exceeds the Class Certificate Balance of the Class 4-A-2
Certificates prior to any reduction for the Class 4-A-1 Loss
Allocation Amount, such excess will be distributed in reduction of the
Class Certificate Balance of the Class 4-A-1 Certificates. On or after
any Distribution Date on which the Class 4-A-2 Loss Allocation Amount
is greater than zero, any increase in the Class Certificate Balance
allocated to the Class 4-A-1 Certificates pursuant to Section
5.04(b)(i) will instead increase the Class Certificate Balance of the
Class 4-A-2 Certificates.
(F) On any Distribution Date on which the Class 4-A-3 Loss
Allocation Amount is greater than zero, the Class Certificate Balance
of the Class 4-A-3 Certificates will be reduced by the Class 4-A-3
Loss Allocation Amount and, notwithstanding Section 5.04(b)(i), the
Class Certificate Balances of the Class 4-A-1 and Class 4-A-2
Certificates will not be reduced by the Class 4-A-3 Loss Allocation
Amount. Notwithstanding the foregoing, on any Distribution Date in
which the sum of the Class 4-A-2 Loss Amount and the Class 4-A-3 Loss
Amount exceeds the Class Certificate Balance of the Class 4-A-3
Certificates prior to any reduction for the Class 4-A-3 Loss
Allocation Amount, such excess will be distributed in reduction of the
Class Certificate Balance of the Class 4-A-2 Certificates. Any
increase in the Class Certificate Balance allocated to the Class 4-A-1
or Class 4-A-2 Certificates pursuant to Section 5.04(b)(i) will
instead increase the Class Certificate Balance of the Class 4-A-3
Certificates.
(v) With respect to any Distribution Date, Realized Losses allocated
pursuant to this Section 5.04(b) will be allocated to each Uncertificated
Lower-Tier Interest as described in Section 5.02.
(vi) Notwithstanding any other provision of this Section 5.04(b), no
Class Certificate Balance of a Class of Certificates or Component Balance
of a Component will be increased on any Distribution Date such that the
Class Certificate Balance of such Class or Component Balance of such
Component exceeds its Initial Class Certificate Balance or Initial
Component Balance, less all distributions of principal previously
distributed in respect of such Class or Component on prior Distribution
Dates (excluding in the case of any Class of Class X-B or Class 4-B
Certificates, any principal otherwise payable to such Class of Certificates
but used to pay any PO Deferred Amount).
Section 5.05 Statements to Certificateholders.
(a) Prior to the Distribution Date in each month, based upon the
information provided to the Securities Administrator on the Master Servicer's
Certificate delivered to the Securities Administrator pursuant to Section 4.01
and with respect to subsections (W) and (X) below, after consultation with the
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Depositor, the Securities Administrator shall determine the following
information with respect to the Certificates and such Distribution Date:
(A) the actual Distribution Date, the Record Date and the
Interest Accrual Period for each Class of Certificates for such
Distribution Date;
(B) the Pool Distribution Amount for each Loan Group;
(C) the amount of the Pool Distribution Amount for each Loan
Group allocable to principal, separately identifying the aggregate
amount of any Principal Prepayments, Liquidation Proceeds and other
components included therein;
(D) the amount of the Pool Distribution Amount for each Loan
Group allocable to interest and for each Related Group, any Class
Unpaid Interest Shortfall or Component Unpaid Interest Shortfall
included in such distribution and any remaining Class Unpaid Interest
Shortfall or Component Unpaid Interest Shortfall after giving effect
to such distribution;
(E) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable
to such Holders if there were sufficient funds available therefor, the
amount of the shortfall and the allocation thereof as between
principal and interest;
(F) the Class Certificate Balance of each Class of Certificates
and the Component Balance of each Component before and after giving
effect to the distribution of principal on such Distribution Date;
(G) for each Loan Group, the Pool Principal Balance for the
preceding Distribution Date and the related Distribution Date;
(H) the Senior Percentage, the Senior Prepayment Percentage, the
Subordinate Percentage and the Subordinate Prepayment Percentage for
each Loan Group and each Distribution Date and the Aggregate Crossed
Senior Percentage and the Aggregate Crossed Subordinate Percentage for
such Distribution Date;
(I) the amount of the Administrative Fees paid to or retained by
the Servicers with respect to each Loan Group and such Distribution
Date;
(J) the Pass-Through Rate for each such Class of Certificates and
each Component with respect to such Distribution Date;
(K) the amount of Periodic Advances with respect to the Mortgage
Loans included in the distribution on such Distribution Date and the
aggregate amount of Periodic Advances outstanding with respect to the
Mortgage Loans as of the close of business on the Determination Date
immediately preceding such Distribution Date;
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(L) the number and aggregate principal amounts of the Mortgage
Loans (A) delinquent (exclusive of Mortgage Loans in foreclosure or
bankruptcy) 31 to 60 days, 61 to 90 days and 91 or more days, (B) in
foreclosure, as of the close of business on the last day of the
calendar month preceding such Distribution Date and (C) in bankruptcy,
as of the close of business on the last day of the calendar month
preceding such Distribution Date;
(M) with respect to any Mortgage Loans that became REO Properties
during the preceding calendar month, the aggregate number of such
Mortgage Loans and the aggregate Stated Principal Balance of such
Mortgage Loans as of the close of business on the Determination Date
preceding such Distribution Date and the date of acquisition of the
REO Properties;
(N) for each Loan Group, the total number and principal balance
of any REO Properties (and market value, if available) as of the close
of business on the Determination Date preceding such Distribution
Date;
(O) the aggregate amount of Realized Losses with respect to the
Loan Group incurred during the preceding calendar month and any PO
Deferred Amounts for the Class 4-PO Certificates and each X-PO
Component for such Distribution Date;
(P) the Class 2-X-IO Notional Amount, the Class 3-X-IO Notional
Amount, the Class X-IO Notional Amount and the Class 4-IO Notional
Amount for such Distribution Date;
(Q) for each Loan Group, the Reimbursement Amounts;
(R) for each Loan Group, the amount of Recoveries, the PO
Recovery and the Non-PO Recovery;
(S) any expenses or indemnification amounts paid by the Trust,
the specific purpose of each payment and the parties to whom such
payments were made;
(T) any material modifications, extensions or waivers to Mortgage
Loan terms, fees, penalties or payments since the previous
Distribution Date;
(U) for the Mortgage Loans contributing to or in each Loan Group,
the number and aggregate Stated Principal Balance, the weighted
average Mortgage Interest Rate, the weighted average remaining term,
each as of the close of business on the last day of the calendar month
preceding such Distribution Date;
(V) unless such information is otherwise set forth in the Form
10-D relating to such Distribution Date and provided that the
Securities Administrator is reasonably able to include such
information in the statement, material breaches of Mortgage Loan
representations and warranties of which the Securities Administrator
has knowledge or has received written notice;
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(W) unless such information is otherwise set forth in the Form
10-D relating to such Distribution Date and provided that the
Securities Administrator is reasonably able to include such
information in the statement, material breaches of any covenants under
this Agreement of which the Securities Administrator has knowledge or
has received written notice; and
For all purposes of this Agreement, with respect to any Mortgage Loan,
delinquencies shall be determined and reported based on the so-called "MBA"
methodology for determining delinquencies on mortgage loans similar to the
Mortgage Loans. By way of example, a Mortgage Loan would be delinquent with
respect to a Monthly Payment due on a Due Date if such Monthly Payment is not
made by the close of business on the Mortgage Loan's next succeeding Due Date,
and a Mortgage Loan would be more than 30-days delinquent with respect to such
Monthly Payment if such Monthly Payment were not made by the close of business
on the Mortgage Loan's second succeeding Due Date.
(b) No later than each Distribution Date, the Securities Administrator,
based upon information supplied to it on the Master Servicer's Certificate,
shall make available to each Holder of a Certificate, each Rating Agency and the
Master Servicer, a single statement setting forth the information set forth in
Sections 5.05(a).
On each Distribution Date, the Securities Administrator shall prepare and
furnish to each Financial Market Service, in electronic or such other format and
media mutually agreed upon by the Securities Administrator, the Financial Market
Service and the Depositor, the information contained in the Master Servicer's
Certificate described in Section 4.01 for such Distribution Date.
The Securities Administrator will make the Monthly Statement to
Certificateholders (and, at its option, any additional files containing the same
or additional information in an alternative format) available each month to
Certificateholders and other parties to this Agreement via the Securities
Administrator's Internet website. The Securities Administrator's Internet
website shall initially be located at "xxx.xxxxxxx.xxx." Assistance in using the
website can be obtained by calling the Securities Administrator's customer
service desk at (000) 000-0000. Parties that are unable to use the website are
entitled to have a paper copy mailed to them via first class mail by calling the
customer service desk and indicating such. The Securities Administrator shall
have the right to change the way the Monthly Statements to Certificateholders
are distributed in order to make such distribution more convenient and/or more
accessible to the above parties and the Securities Administrator shall provide
timely and adequate notification to all above parties regarding any such
changes.
Within a reasonable period of time after the end of each calendar year, the
Securities Administrator shall furnish to each Person who at any time during the
calendar year was the Holder of a Certificate, if requested in writing by such
Person, a statement containing the information set forth in clauses (C) and (D)
of Section 5.05(a) aggregated for such calendar year or applicable portion
thereof during which such Person was a Certificateholder. Such obligation of the
Securities Administrator shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Securities
Administrator pursuant to any requirements of the Code as from time to time in
force.
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The Securities Administrator shall deliver to the Holders of Certificates
any reports or information the Securities Administrator is required by this
Agreement or the Code, Treasury Regulations or REMIC Provisions to deliver to
the Holders of Certificates, and the Securities Administrator shall prepare and
provide to the Certificateholders (by mail, telephone, or publication as may be
permitted by applicable Treasury Regulations) such other reasonable information
as the Securities Administrator deems necessary or appropriate or is required by
the Code, Treasury Regulations, and the REMIC Provisions including, but not
limited to, (i) information to be reported to the Holder of the Residual
Certificate for quarterly notices on Schedule Q (Form 1066) (which information
shall be forwarded to the Holder of the Residual Certificate by the Securities
Administrator), (ii) information to be provided to the Holders of Certificates
with respect to amounts which should be included as interest and original issue
discount in such Holders' gross income and (iii) information to be provided to
all Holders of Certificates setting forth the percentage of each REMIC's assets,
determined in accordance with Treasury Regulations using a convention, not
inconsistent with Treasury Regulations, selected by the Securities Administrator
in its absolute discretion, that constitute real estate assets under Section 856
of the Code, and assets described in Section 7701(a)(19)(C) of the Code;
provided, however, that in setting forth the percentage of such assets of each
REMIC created hereunder, nothing contained in this Agreement, including without
limitation Section 7.03 hereof, shall be interpreted to require the Securities
Administrator periodically to appraise the fair market values of the assets of
the Trust Estate or to indemnify the Trust Estate or any Certificateholders from
any adverse federal, state or local tax consequences associated with a change
subsequently required to be made in the Depositor's initial good faith
determinations of such fair market values (if subsequent determinations are
required pursuant to the REMIC Provisions) made from time to time.
Section 5.06 REMIC Tax Returns and Reports to Certificateholders.
(a) For federal income tax purposes, each REMIC created hereunder shall
have a taxable year ending on December 31st and shall maintain its books on the
accrual method of accounting.
(b) The Securities Administrator shall prepare or cause to be prepared,
shall execute or cause to be executed by such Person as is required by the Code,
Treasury Regulations or state or local tax laws, regulations or rules and shall
file or cause to be filed with the Internal Revenue Service and applicable state
or local tax authorities income tax and information returns for each taxable
year with respect to each REMIC created hereunder containing such information at
the times and in the manner as may be required by the Code, the Treasury
Regulations or state or local tax laws, regulations, or rules, and shall furnish
or cause to be furnished to each REMIC created hereunder and the
Certificateholders the schedules, statements or information at such times and in
such manner as may be required thereby. The Master Servicer shall provide on a
timely basis to the Securities Administrator or its designee such information
with respect to the assets of the Trust Estate as is in its possession and
reasonably required by the Securities Administrator to enable it to perform its
obligations under this Article V. Within 30 days of the Closing Date, the
Securities Administrator shall obtain for each REMIC created hereunder a
taxpayer identification number on Form SS-4 and any similarly required state or
local forms or as otherwise permitted by the Internal Revenue Service, and shall
furnish or cause to be furnished to the Internal Revenue Service, on Form 8811
and any similarly required state or local forms or as otherwise required by the
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Code or the Treasury Regulations, the name, title, address and telephone number
of the person that Holders of the Certificates may contact for tax information
relating thereto, together with such additional information at the time or times
and in the manner required by the Code or the Treasury Regulations. Such
federal, state, or local income tax and information returns shall be signed by
the Trustee, or such other Person as may be required to sign such returns by the
Code, the Treasury Regulations or state or local tax laws, regulations, or
rules.
(c) In the first federal income tax return (and any similar required state
or local income tax returns) of each REMIC created hereunder for its short
taxable year ending December 31, 2007, REMIC status shall be elected for such
taxable year and all succeeding taxable years.
(d) The Securities Administrator will maintain or cause to be maintained
such records relating to each REMIC created hereunder, including but not limited
to records relating to the income, expenses, assets and liabilities of the Trust
Estate, and the initial fair market value and adjusted basis of the Trust Estate
property and assets determined at such intervals as may be required by the Code
or the Treasury Regulations, as may be necessary to prepare the foregoing
returns, schedules, statements or information.
Section 5.07 Tax Matters Person.
The Tax Matters Person shall have the same duties with respect to the
applicable REMIC as those of a "tax matters partner" under Subchapter C of
Chapter 63 of Subtitle F of the Code. The Holder of the Class 1-A-R Certificate
is hereby designated as the Tax Matters Person for the Upper-Tier REMIC and the
Lower-Tier REMIC. By its acceptance of the Class 1-A-R Certificate, such Holder
irrevocably appoints the Securities Administrator as its agent to perform all of
the duties of the Tax Matters Person for the Upper-Tier REMIC and the Lower-Tier
REMIC.
Section 5.08 Rights of the Tax Matters Person in Respect of the Securities
Administrator.
The Securities Administrator shall afford the Tax Matters Person, upon
reasonable notice during normal business hours, access to all records maintained
by the Securities Administrator in respect of its duties hereunder and access to
officers of the Securities Administrator responsible for performing such duties.
Upon request, the Securities Administrator shall furnish the Tax Matters Person
with its most recent report of condition published pursuant to law or to the
requirements of its supervisory or examining authority publicly available. The
Securities Administrator shall make available to the Tax Matters Person such
books, documents or records relating to the Securities Administrator's services
hereunder as the Tax Matters Person shall reasonably request. The Tax Matters
Person shall not have any responsibility or liability for any action or failure
to act by the Securities Administrator and is not obligated to supervise the
performance of the Securities Administrator under this Agreement or otherwise.
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Section 5.09 REMIC Related Covenants.
For as long as any REMIC created hereunder shall exist, the Trustee, the
Securities Administrator, the Depositor and the Master Servicer shall act in
accordance herewith to assure continuing treatment of each REMIC created
hereunder as a REMIC within the meaning of the Code and related regulations and
avoid the imposition of tax on any REMIC created hereunder. In particular:
(a) Neither the Securities Administrator nor the Trustee shall create, or
permit the creation of, any "interests" in any REMIC created hereunder within
the meaning of Code Section 860D(a)(2) other than the interests represented by
the Residual Certificate, the Upper-Tier Regular Interests and the
Uncertificated Lower-Tier Interests.
(b) Except as otherwise provided in the Code, (i) the Depositor and the
Master Servicer shall not contribute to the Trust Estate and the Trustee shall
not accept property unless substantially all of the property held in each REMIC
constitutes either "qualified mortgages" or "permitted investments" as defined
in Code Sections 860G(a)(3) and (5), respectively, and (ii) no property shall be
contributed, or deemed contributed, to any REMIC created hereunder after the
start-up day unless such contribution would not subject the Trust Estate to the
100% tax on contributions to a REMIC created hereunder after the start-up day of
such REMIC imposed by Code Section 860G(d).
(c) Neither the Securities Administrator, on behalf of the Trust Estate or
the Trustee, nor the Trustee shall accept on behalf of any REMIC created
hereunder any fee or other compensation for services and none of the Securities
Administrator, the Trustee or the Master Servicer shall knowingly accept, on
behalf of the Trust Estate any income from assets other than those permitted to
be held by a REMIC.
(d) Neither the Securities Administrator, on behalf of the Trust Estate or
the Trustee, nor the Trustee shall sell or permit the sale of all or any portion
of the Mortgage Loans (other than in accordance with Sections 2.02 or 2.04),
unless such sale is pursuant to a "qualified liquidation" of the applicable
REMIC as defined in Code Section 860F(a)(4)(A) and in accordance with Article X.
(e) The Securities Administrator shall maintain books with respect to the
Trust and each REMIC created hereunder on a calendar year taxable year basis and
on an accrual basis.
(f) None of the Master Servicer, the Securities Administrator or the
Trustee shall engage in a "prohibited transaction" (as defined in Code Section
860F(a)(2)), except that, with the prior written consent of the Master Servicer
and the Depositor, the Securities Administrator may engage in the activities
otherwise prohibited by the foregoing paragraphs (b), (c) and (d); provided that
the Master Servicer shall have delivered to the Securities Administrator an
Opinion of Counsel to the effect that such transaction will not result in the
imposition of a tax on any REMIC created hereunder and will not disqualify any
such REMIC from treatment as a REMIC; and, provided further, that the applicable
Master Servicer shall have demonstrated to the satisfaction of the Securities
Administrator that such action will not adversely affect the rights of the
Holders of the Certificates and the Securities Administrator and that such
action will not adversely impact the rating of the Certificates. None of the
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Master Servicer, the Securities Administrator, the Trustee or any Servicer
shall, unless the Mortgagor is in default with respect to the Mortgage Loan or
such default is, in the judgment of the Servicer, reasonably foreseeable, permit
any modification with respect to any Mortgage Loan that would (i) change the
Mortgage Interest Rate, defer or forgive the payment thereof of any principal or
interest payments, reduce the Stated Principal Balance (except for actual
payments of principal) or extend the final maturity date with respect to such
Mortgage Loan, (ii) affect adversely the status of any REMIC as a REMIC or (iii)
cause any REMIC to be subject to a tax on "prohibited transactions" or
"contributions" pursuant to the REMIC Provisions. Further, none of the Master
Servicer, the Securities Administrator, the Trustee or any Servicer shall permit
any modification with respect to any Mortgage Loan that would both (x) effect an
exchange or reissuance of such Mortgage Loan under Section 1.860G-2(b) of the
Treasury regulations and (y) cause any REMIC constituting part of the Trust
Estate to fail to qualify as a REMIC under the Code or the imposition of any tax
on "prohibited transactions" or "contributions" after the Start-up Day under the
REMIC Provisions.
Section 5.10 [Reserved].
Section 5.11 Master Servicer, Securities Administrator and Trustee
Indemnification.
(a) In the event that any REMIC created hereunder fails to qualify as a
REMIC, loses its status as a REMIC, or incurs federal, state or local taxes as a
result of a prohibited transaction or prohibited contribution under the REMIC
Provisions due solely to (i) the negligent performance by the Trustee of its
duties and obligations set forth herein or (ii) any state, local or franchise
taxes imposed upon the Trust Estate as a result of the location of the Trustee
or any co-trustee, the Trustee shall indemnify the Trust Estate against any and
all losses, claims, damages, liabilities or expenses ("Losses") resulting from
such negligence, including, without limitation, any reasonable attorneys' fees
imposed on or incurred as a result of a breach of the Trustee's or any
co-trustee's covenants.
(b) In the event that any REMIC created hereunder fails to qualify as a
REMIC, loses its status as a REMIC, or incurs federal, state or local taxes as a
result of a prohibited transaction or prohibited contribution under the REMIC
Provisions due solely to (i) the negligent performance by the Master Servicer of
its duties and obligations set forth herein or (ii) any state, local or
franchise taxes imposed upon the Trust Estate as a result of the location of the
Master Servicer, the Master Servicer shall indemnify the Trust Estate against
any and all Losses resulting from such negligence, including, without
limitation, any reasonable attorneys' fees imposed on or incurred as a result of
a breach of the Master Servicer's covenants.
(c) In the event that any REMIC created hereunder fails to qualify as a
REMIC, loses its status as a REMIC, or incurs federal, state or local taxes as a
result of a prohibited transaction or prohibited contribution under the REMIC
Provisions due solely to (i) the negligent performance by the Securities
Administrator of its duties and obligations set forth herein or (ii) any state,
local or franchise taxes imposed upon the Trust Estate as a result of the
location of the Securities Administrator, the Securities Administrator shall
indemnify the Trust Estate against any and all Losses resulting from such
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negligence, including, without limitation, any reasonable attorneys' fees
imposed on or incurred as a result of a breach of the Securities Administrator's
covenants.
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates.
The Classes of Certificates shall be substantially in the forms attached
hereto as Exhibits A-1AR through A-4A3, B-X through B-4, and C (reverse of all
Certificates) and shall, on original issue, be executed by the Securities
Administrator and shall be authenticated and delivered by the Securities
Administrator to or upon the order of the Depositor upon receipt by the Trustee
of the documents specified in Section 2.01. The Classes of Certificates shall be
available to investors in minimum Denominations and integral multiples in excess
thereof set forth in the Preliminary Statement. The Offered Certificates (other
than the Class 1-A-R Certificate) shall initially be issued in book-entry form
through the Depository and delivered to the Depository or, pursuant to the
Depository's instructions on behalf of the Depository to, and deposited with,
the Certificate Custodian, and all other Classes of Certificates shall initially
be issued in definitive, fully-registered form.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Securities Administrator by an authorized officer or signatory.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures were affixed, authorized to sign on behalf of
the Securities Administrator shall bind the Securities Administrator,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the execution and delivery of such Certificates or did not
hold such offices or positions at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless such Certificate shall have been manually authenticated by the
Securities Administrator substantially in the form provided for herein, and such
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
Section 6.02 Registration of Transfer and Exchange of Certificates.
(a) The Securities Administrator shall cause to be kept at an office or
agency in the city in which the Corporate Trust Office of the Securities
Administrator is located a Certificate Register in which, subject to such
reasonable regulations as it may prescribe, the Securities Administrator shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Securities Administrator shall initially
serve as Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided.
(b) At the option of the Certificateholders, Certificates may be exchanged
for other Certificates of authorized Denominations of a like Class, tenor and
aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at any such office or agency. Whenever any Certificates are so
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surrendered for exchange, the Securities Administrator shall execute and the
Securities Administrator shall authenticate and deliver the Certificates that
the Certificateholder making the exchange is entitled to receive. Every
Certificate presented or surrendered for transfer or exchange shall (if so
required by the Securities Administrator or the Certificate Registrar) be duly
endorsed by, or be accompanied by a written instrument of transfer in form
satisfactory to the Securities Administrator and the Certificate Registrar duly
executed by, the Holder thereof or its attorney duly authorized in writing.
(c) (i) Except as provided in paragraph (c)(iii) below, the Book-Entry
Certificates shall at all times remain registered in the name of the Depository
or its nominee and at all times: (A) registration of the Book-Entry Certificates
may not be transferred by the Securities Administrator except to another
Depository; (B) the Depository shall maintain book-entry records with respect to
the Certificate Owners and with respect to ownership and transfers of such
Book-Entry Certificates; (C) ownership and transfers of registration of the
Book-Entry Certificates on the books of the Depository shall be governed by
applicable rules established by the Depository; (D) the Depository may collect
its usual and customary fees, charges and expenses from its Depository
Participants; (E) the Securities Administrator shall deal with the Depository as
the representative of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of Holders under this Agreement, and requests
and directions for and votes of the Depository shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(F) the Securities Administrator may rely and shall be fully protected in
relying upon information furnished by the Depository with respect to its
Depository Participants and furnished by the Depository Participants with
respect to indirect participating firms and persons shown on the books of such
indirect participating firms as direct or indirect Certificate Owners.
(ii) All transfers by Certificate Owners of Book-Entry Certificates
shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing such Certificate
Owner. Each Depository Participant shall only transfer Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for
which it acts as agent in accordance with the Depository's normal
procedures.
(iii) If the Depository advises the Securities Administrator in
writing that the Depository is no longer willing or able to properly
discharge its responsibilities as Depository and the Securities
Administrator or the Depositor is unable to locate a qualified successor,
the Securities Administrator shall notify all Certificate Owners through
the Depository of the occurrence of such event and of the availability of
definitive, fully-registered Certificates (the "Definitive Certificates")
to such Certificate Owners requesting the same. Upon surrender to the
Securities Administrator of the related Class of Certificates by the
Depository (or by the Certificate Custodian, if it holds such Class on
behalf of the Depository), accompanied by the instructions from the
Depository for registration, the Securities Administrator shall issue the
Definitive Certificates. None of the Master Servicer, the Depositor, the
Securities Administrator or the Trustee shall be liable for any delay in
delivery of such instruction and may conclusively rely on, and shall be
protected in relying on, such instructions. The Depositor shall provide the
Securities Administrator with an adequate inventory of certificates to
facilitate the issuance and transfer of Definitive Certificates. Upon the
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issuance of Definitive Certificates, the Securities Administrator shall
recognize the Holders of the Definitive Certificates as Certificateholders
hereunder.
(d) No transfer of a Private Certificate shall be made unless such transfer
is exempt from the registration requirements of the 1933 Act and any applicable
state securities laws or is made in accordance with the 1933 Act and such laws.
In the event of any such transfer (other than in connection with the initial
transfer of any such Certificate by the Depositor to an Affiliate of the
Depositor or, in the case of the Class 1-A-R Certificate, the first transfer by
an Affiliate of the Depositor, (i) unless such transfer is made in reliance on
Rule 144A under the 1933 Act, the Securities Administrator or the Depositor may
require a written Opinion of Counsel (which may be in-house counsel) acceptable
to and in form and substance reasonably satisfactory to the Securities
Administrator and the Depositor that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from the
1933 Act and such laws or is being made pursuant to the 1933 Act and such laws,
which Opinion of Counsel shall not be an expense of the Securities Administrator
or the Depositor and (ii) the Securities Administrator shall require a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached hereto as Exhibit G-1 and a certificate from
such Certificateholder's prospective transferee substantially in the form
attached hereto either as Exhibit G-2A or Exhibit G-2B, which certificates shall
not be an expense of the Securities Administrator or the Depositor; provided
that the foregoing requirements under clauses (i) and (ii) shall not apply to a
transfer of a Private Certificate between or among the Depositor, the Sponsor,
their affiliates or both. The Depositor shall provide to any Holder of a Private
Certificate and any prospective transferees designated by any such Holder,
information regarding the related Certificates and the Mortgage Loans and such
other information as shall be necessary to satisfy the condition to eligibility
set forth in Rule 144A(d)(4) for transfer of any such certificate without
registration thereof under the 1933 Act pursuant to the registration exemption
provided by Rule 144A. The Holder of a Private Certificate desiring to effect
such transfer shall, and does hereby agree to, indemnify the Securities
Administrator and the Depositor against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws. For purposes of clause (ii) of this Section 6.02(d) the
representations required in any transferor certificate (substantially in the
form of Exhibit G-1 hereto) and any investment letter (substantially in the form
of Exhibit G-2A hereto) shall be deemed to have made in connection with the
transfer of any Private Certificate that is a Book-Entry Certificate.
(e) No transfer of an ERISA Restricted Certificate shall be made unless the
transferee delivers to the Securities Administrator either (i) a representation
letter substantially in the form attached hereto as Exhibit H from the
transferee of such Certificate, which representation letter shall not be an
expense of the Depositor, the Trustee, the Securities Administrator or the
Master Servicer, or (ii) in the case of any ERISA Restricted Certificate (other
than the Class 1-A-R Certificate) presented for registration in the name of an
employee benefit plan or arrangement, subject to Title I of ERISA or Section
4975 of the Code, or a Person acting on behalf of or using assets of any such
employee benefit plan or arrangement (collectively, a "Plan") an Opinion of
Counsel in form and substance satisfactory to the Securities Administrator to
the effect that the purchase or holding of such ERISA Restricted Certificate
will not constitute or result in a non-exempt prohibited transaction within the
meaning of Section 406 of ERISA or Section 4975 of the Code and will not subject
the Trustee, the Depositor, the Securities Administrator or the Master Servicer
to any obligation in addition to those undertaken in this Agreement, which
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Opinion of Counsel shall not be an expense of the Trust, the Securities
Administrator, the Depositor, the Trustee or the Master Servicer. In the case of
an ERISA Restricted Certificate that is a Book-Entry Certificate, for purposes
of clause (i) of the preceding sentence, a transferee will be deemed to have
made one of the representations set forth in Exhibit H by the acceptance by a
Certificate Owner of a Book-Entry Certificate of the beneficial interest in any
such Class of ERISA-Restricted Certificates, unless the Securities Administrator
shall have received from the transferee an alternative representation or Opinion
of Counsel acceptable in form and substance to the Securities Administrator.
Notwithstanding anything else to the contrary herein, any purported transfer of
an ERISA Restricted Certificate in definitive form to a Plan without the
delivery to the Securities Administrator of a properly completed representation
letter or an Opinion of Counsel satisfactory to the Securities Administrator as
described above shall be void and of no effect.
Neither the Securities Administrator nor the Certificate Registrar shall
have any liability for transfers of Book-Entry Certificates made through the
book-entry facilities of the Depository or between or among any Depository
Participants or Certificate Owners, made in violation of applicable
restrictions. The Securities Administrator may rely and shall be fully protected
in relying upon information furnished by the Depository with respect to its
Depository Participants and furnished by the Depository Participants with
respect to indirect participating firms and Persons shown on the books of such
indirect participating firms as direct or indirect Certificate Owners.
To the extent permitted under applicable law (including, but not limited
to, ERISA), the Securities Administrator shall be under no liability to any
Person for any registration of transfer of any ERISA Restricted Certificate that
is in fact not permitted by this Section 6.02 or for making any payments due on
such Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of this Agreement so long as the transfer
was registered by the Securities Administrator in accordance with the foregoing
requirements.
(f) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Securities Administrator of any change or impending change in
its status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Residual
Certificate unless such Ownership Interest is a pro rata undivided
interest.
(iii) In connection with any proposed transfer of any Ownership
Interest in a Residual Certificate, the Securities Administrator shall
require delivery to it, in form and substance satisfactory to it, of an
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affidavit substantially in the form attached hereto as Exhibit I from the
proposed transferee and a certificate substantially in the form attached
hereto as Exhibit T.
(iv) Notwithstanding the delivery of an affidavit by a proposed
transferee under clause (iii) above, if a Responsible Officer of the
Securities Administrator has actual knowledge that the proposed transferee
is not a Permitted Transferee, no transfer of any Ownership Interest in a
Residual Certificate to such proposed transferee shall be effected.
(v) No Ownership Interest in a Residual Certificate may be purchased
by or transferred to any Person that is not a U.S. Person, unless (A) such
Person holds such Residual Certificate in connection with the conduct of a
trade or business within the United States and furnishes the transferor and
the Securities Administrator with an effective Internal Revenue Service
Form W-8ECI (or successor thereto) or (B) the transferee delivers to both
the transferor and the Securities Administrator an Opinion of Counsel from
a nationally-recognized tax counsel to the effect that such transfer is in
accordance with the requirements of the Code and the regulations
promulgated thereunder and that such transfer of a Residual Certificate
will not be disregarded for federal income tax purposes.
(vi) Any attempted or purported transfer of any Ownership Interest in
a Residual Certificate in violation of the provisions of this Section 6.02
shall be absolutely null and void and shall vest no rights in the purported
transferee. If any purported transferee shall, in violation of the
provisions of this Section 6.02, become a Holder of a Residual Certificate,
then the prior Holder of such Residual Certificate that is a Permitted
Transferee shall, upon discovery that the registration of transfer of such
Residual Certificate was not in fact permitted by this Section 6.02, be
restored to all rights as Holder thereof retroactive to the date of
registration of transfer of such Residual Certificate. The Securities
Administrator shall be under no liability to any Person for any
registration of transfer of a Residual Certificate that is in fact not
permitted by this Section 6.02 or for making any distributions due on such
Residual Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of the Agreement so long as the
transfer was registered in accordance with this Section 6.02. The
Securities Administrator shall be entitled to recover from any Holder of a
Residual Certificate that was in fact not a Permitted Transferee at the
time such distributions were made all distributions made on such Residual
Certificate. Any such distributions so recovered by the Securities
Administrator shall be distributed and delivered by the Securities
Administrator to the prior Holder of such Residual Certificate that is a
Permitted Transferee.
(vii) If any Person other than a Permitted Transferee acquires any
Ownership Interest in a Residual Certificate in violation of the
restrictions in this Section 6.02, then the Securities Administrator, based
on information provided to the Securities Administrator by the Master
Servicer, will provide to the Internal Revenue Service, and to the Persons
specified in Section 860E(e)(3) and (6) of the Code, information needed to
compute the tax imposed under Section 860E(e) of the Code on transfers of
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residual interests to disqualified organizations. The expenses of the
Securities Administrator under this clause (vii) shall be reimbursable by
the Trust.
(viii) No Ownership Interest in a Residual Certificate shall be
acquired by a Plan.
(g) No service charge shall be imposed for any transfer or exchange of
Certificates of any Class, but the Securities Administrator may require payment
of a sum sufficient to cover any tax or governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
(h) All Certificates surrendered for transfer and exchange shall be
destroyed by the Certificate Registrar.
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Certificate
Registrar or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (b) there is delivered to
the Securities Administrator, the Trustee, the Depositor and the Certificate
Registrar such security or indemnity reasonably satisfactory to each, to save
each of them harmless, then, in the absence of actual notice to the Securities
Administrator or the Certificate Registrar that such Certificate has been
acquired by a bona fide purchaser, the Securities Administrator shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor, Class
and Percentage Interest but bearing a number not contemporaneously outstanding.
Upon the issuance of any new Certificate under this Section, the Securities
Administrator may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Securities Administrator and
the Certificate Registrar) connected therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
Section 6.04 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of transfer,
the Depositor, the Master Servicer, the Trustee, the Securities Administrator,
the Certificate Registrar and any agent of the Depositor, the Master Servicer,
the Trustee, the Securities Administrator or the Certificate Registrar may treat
the Person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 5.01
and for all other purposes whatsoever, and none of the Depositor, the Master
Servicer, the Trustee, the Securities Administrator, the Certificate Registrar
or any agent of the Depositor, the Master Servicer, the Trustee, the Securities
Administrator or the Certificate Registrar shall be affected by notice to the
contrary.
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ARTICLE VII
THE DEPOSITOR AND THE MASTER SERVICER
Section 7.01 Respective Liabilities of the Depositor and the Master
Servicer.
The Depositor and the Master Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by the Depositor and the Master Servicer herein. By
way of illustration and not limitation, the Depositor is not liable for the
master servicing and administration of the Mortgage Loans, nor is it obligated
by Section 8.01 to assume any obligations of the Master Servicer or to appoint a
designee to assume such obligations, nor is it liable for any other obligation
hereunder that it may, but is not obligated to, assume unless it elects to
assume such obligation in accordance herewith.
Section 7.02 Merger or Consolidation of the Depositor or the Master
Servicer.
The Depositor and the Master Servicer will each keep in full effect its
existence, rights and franchises as a separate entity under the laws governing
its organization, and will each obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
Any Person into which the Depositor or the Master Servicer may be merged or
consolidated, or any corporation resulting from any merger or consolidation to
which the Depositor or the Master Servicer shall be a party, or any Person
succeeding to the business of the Depositor or the Master Servicer, shall be the
successor of the Depositor or the Master Servicer, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person to
the Master Servicer shall be qualified to service mortgage loans on behalf of
Xxxxxx Xxx or Xxxxxxx Mac.
In connection with the succession to the Master Servicer under this
Agreement by any Person (i) into which the Master Servicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the Master
Servicer, the Master Servicer shall notify the Depositor of such succession or
appointment and shall furnish to the Depositor and the Securities Administrator
in writing and in form and substance reasonably satisfactory to the Depositor
and the Securities Administrator, all information reasonably necessary for the
Securities Administrator to accurately and timely report, pursuant to Section
3.22(d), the event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if
such reports under the Exchange Act are required to be filed under the Exchange
Act).
Section 7.03 Limitation on Liability of the Depositor, the Master Servicer
and Others.
None of the Depositor, the Master Servicer or any of the directors,
officers, employees or agents of the Depositor or of the Master Servicer shall
be under any liability to the Trust Estate or the Certificateholders for any
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action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Depositor, the Master Servicer or any such
Person against any breach of warranties or representations made herein or any
liability which would otherwise be imposed by reason of willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder. The Depositor, the Master
Servicer and any director, officer, employee or agent of the Depositor or the
Master Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Master Servicer and any director, officer,
employee or agent of the Depositor or the Master Servicer shall be indemnified
by the Trust Estate and held harmless against any loss, liability or expense
incurred in connection with any legal action relating to this Agreement or the
Certificates, other than any loss, liability or expense related to any specific
Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement) and any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. Neither of the Depositor nor the
Master Servicer shall be under any obligation to appear in, prosecute or defend
any legal action which is not incidental to its respective duties under this
Agreement and which in its opinion may involve it in any expense or liability;
provided, however, that the Depositor or the Master Servicer may in its
discretion undertake any such action which it may deem necessary or desirable in
respect to this Agreement and the rights and duties of the parties hereto and
the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust Estate (except any expenses, costs
or liabilities incurred as a result of any breach of representations or
warranties of the related party or by reason of willful misfeasance, bad faith
or gross negligence in the performance of duties of such party hereunder or by
reason of reckless disregard of obligations and duties of such party hereunder),
and the Depositor and the Master Servicer shall each be entitled to be
reimbursed therefor out of amounts attributable to the applicable Mortgage Loans
on deposit in the Master Servicer Custodial Account, as provided by Section
3.11.
Section 7.04 Depositor and Master Servicer Not to Resign.
Subject to the provisions of Section 7.02, neither the Depositor nor the
Master Servicer shall resign from its respective obligations and duties hereby
imposed on it except upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination permitting the
resignation of the Depositor or the Master Servicer shall be evidenced by an
Opinion of Counsel to such effect delivered to the Securities Administrator. No
such resignation by the Master Servicer shall become effective until the Trustee
or a successor Master Servicer shall have assumed the Master Servicer's
responsibilities and obligations in accordance with Section 8.05 hereof.
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ARTICLE VIII
DEFAULT
Section 8.01 Events of Default.
If any one of the following events ("Events of Default") shall occur and be
continuing:
(a) any failure by the Master Servicer to remit amounts to the Securities
Administrator for deposit into the Certificate Account in the amount and manner
provided herein so as to enable the Securities Administrator to distribute to
Holders of Certificates any payment required to be made under the terms of such
Certificates and this Agreement which continues unremedied by 12:00 P.M. New
York time on the related Distribution Date; or
(b) failure on the part of the Master Servicer duly to observe or perform
in any material respect any other covenants or agreements of the Master Servicer
set forth in the Certificates or in this Agreement, which covenants and
agreements continue unremedied for a period of 30 days after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Master Servicer by the Securities Administrator, the Trustee
or the Depositor, or to the Master Servicer, the Depositor, the Securities
Administrator and the Trustee by the Holders of Certificates evidencing Voting
Rights aggregating not less than 25% of all Certificates affected thereby; or
(c) the entry of a decree or order by a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings against the Master
Servicer, or for the winding up or liquidation of the Master Servicer's affairs,
and the continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(d) the consent by the Master Servicer to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings of or relating to the Master
Servicer or of or relating to substantially all of its property; or the Master
Servicer shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its creditors, or
voluntarily suspend payment of its obligations; or
(e) failure by the Master Servicer to duly perform, within the required
time period, its obligations under Section 3.20, Section 3.21 or Section 3.22;
or
(f) failure by the Master Servicer to make a Periodic Advance required to
be made by it pursuant to Section 3.19 by 5:00 P.M. New York time on the
Business Day preceding the related Distribution Date.
then, (i) in the case of Event of Default described in clauses (a) through (e)
hereof, so long as such Event of Default is actually known by a Responsible
Officer of the Trustee or the Depositor and shall not have been remedied by the
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Master Servicer, either the Trustee or the Depositor may, and at the direction
of the Holders of Certificates evidencing Voting Rights aggregating not less
than 51% of all Certificates affected thereby shall, by notice then given in
writing to the Master Servicer (and to the Trustee, if given by the Depositor,
and to the Depositor, if given by the Trustee), terminate all of the rights and
obligations of the Master Servicer under this Agreement and (ii) in the case of
an Event of Default described in clause (f) hereof, so long as such event is
known by a Responsible Officer of the Trustee, the Trustee shall be obligated to
make such Periodic Advance and then, so long as such Event of Default shall not
have been remedied by 5:00 P.M. New York time on the related Distribution Date
(including the reimbursement to the Trustee by the Master Servicer, with
interest thereon at the Prime Rate (as set forth in The Wall Street Journal),
for any Periodic Advance made), the Trustee may, by notice given in writing to
the Master Servicer and the Depositor, terminate all of the rights and
obligations of the Master Servicer under this Agreement. On or after the receipt
by the Master Servicer of such written notice and subject to Section 8.05, all
authority and power of the Master Servicer under this Agreement, whether with
respect to the Certificates or the Mortgage Loans or otherwise, shall pass to
and be vested in the Trustee pursuant to and under this Section 8.01 and Section
8.05, unless and until such time as the Trustee shall appoint a successor Master
Servicer pursuant to Section 8.05, and, without limitation, the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of the Master
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement of the applicable Mortgage Loans and
related documents, or otherwise, including, without limitation, the recordation
of the assignments of the applicable Mortgage Loans to it. The Master Servicer
agrees to cooperate with the Trustee in effecting the termination of the
responsibilities and rights of the Master Servicer hereunder, including, without
limitation, the transfer to the Trustee for the administration by it of all cash
amounts that have been deposited by the Master Servicer in the Master Servicer
Custodial Account or thereafter received by the Master Servicer with respect to
the Mortgage Loans. Upon obtaining notice or knowledge of the occurrence of any
Event of Default, the Person obtaining such notice or knowledge shall give
prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register and to each Rating Agency. All
costs and expenses (including attorneys' fees) incurred in connection with
transferring the master servicing data and information to the successor Master
Servicer and amending this Agreement to reflect such succession as Master
Servicer pursuant to this Section 8.01 shall be paid by the predecessor Master
Servicer (unless the predecessor Master Servicer is the Trustee, in which event
the previous Master Servicer shall be responsible for payment of such costs and
expenses so long as the transfer of servicing is not the result of an Event of
Default on the part of the Trustee in its capacity as the predecessor Master
Servicer). Notwithstanding the termination of the Master Servicer pursuant
hereto, the Master Servicer shall remain liable for any causes of action arising
out of any Event of Default occurring prior to such termination, subject to the
terms and conditions of this Agreement.
Section 8.02 Remedies of Trustee.
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 8.01, shall have the right, in its own name as trustee of
an express trust, to take all actions now or hereafter existing at law, in
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equity or by statute to enforce its rights and remedies and to protect the
interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filing of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
Section 8.03 Directions by Certificateholders and Duties of Trustee During
Event of Default.
During the continuance of any Event of Default, Holders of Certificates
evidencing Voting Rights aggregating not less than 25% (or such other percentage
as may be required herein) of each Class of Certificates affected thereby may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the
Trustee under this Agreement; provided, however, that the Trustee shall be under
no obligation to pursue any such remedy, or to exercise any of the trusts or
powers vested in it by this Agreement (including, without limitation, (a) the
conducting or defending of any administrative action or litigation hereunder or
in relation hereto, and (b) the terminating of the Master Servicer or any
successor master servicer from its rights and duties as master servicer
hereunder) at the request, order or direction of any of the Certificateholders,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby and, provided further,
that, subject to the provisions of Section 9.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee, based upon an
Opinion of Counsel, determines that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith determines that the action or
proceeding so directed would subject the Trustee to a risk of personal liability
or be unjustly prejudicial to the non-assenting Certificateholders.
Section 8.04 Action upon Certain Failures of the Master Servicer and upon
Event of Default.
In the event that a Responsible Officer of the Trustee shall have actual
knowledge of any failure of the Master Servicer specified in Section 8.01(a) or
(b) which would become an Event of Default upon the Master Servicer's failure to
remedy the same after notice, the Trustee shall give notice thereof to the
Master Servicer. If a Responsible Officer of the Trustee shall have knowledge of
an Event of Default, the Trustee shall give prompt written notice thereof to the
Securities Administrator and the Securities Administrator shall give prompt
written notice thereof to the Certificateholders in accordance with Section
8.01.
Section 8.05 Trustee to Act; Appointment of Successor.
(a) Within 90 days of the time the Master Servicer (and the Trustee if such
notice of termination is delivered by the Depositor) receives a notice of
termination pursuant to Section 8.01, the Trustee (or other named successor)
shall, subject to Section 3.07, be the successor in all respects to the Master
Servicer in its capacity as master servicer under this Agreement and the
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transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Master
Servicer by the terms and provisions hereof and thereof, as applicable, or shall
appoint a successor pursuant to Section 3.07. Notwithstanding the foregoing, (i)
the parties hereto agree that the Trustee, in its capacity as successor Master
Servicer, immediately will assume all of the obligations of the Master Servicer
to make advances (including, without limitation, Advances pursuant to Section
3.19) under this Agreement, (ii) the Trustee, in its capacity as successor
Master Servicer, shall not be responsible for the lack of information and/or
documents that it cannot obtain through reasonable efforts and (iii) under no
circumstances shall any provision of this Agreement be construed to require the
Trustee (a) acting in its capacity as successor to the Master Servicer in its
obligation to make advances (including Advances pursuant to Section 3.19) to
advance, expend or risk its own funds or otherwise incur any financial liability
in the performance of its duties hereunder if it shall have reasonable grounds
for believing that such funds are non-recoverable, (b) to be liable for any
losses of the Master Servicer or any acts or omissions of the predecessor Master
Servicer hereunder, (c) to be obligated to make Advances if it is prohibited
from doing so by applicable law, (d) to be obligated to effectuate repurchases
or substitutions of the Mortgage Loans hereunder or (e) to be obligated to
perform any obligation of the Master Servicer under Section 3.20, Section 3.21
or Section 3.22 with respect to any period of time during which the Trustee was
not the Master Servicer. Subject to Section 8.05(b), as compensation therefor,
the Trustee shall be entitled to such compensation as the terminated Master
Servicer would have been entitled to hereunder if no such notice of termination
had been given, except for those amounts due to the Master Servicer as
reimbursement for Advances previously made or amounts previously expended and
are otherwise reimbursable hereunder. Notwithstanding the above, the Trustee
may, if it shall be unwilling so to act, or shall, if it is legally unable so to
act, appoint, or petition a court of competent jurisdiction to appoint, any
established housing and home finance institution having a net worth of not less
than $10,000,000 as the successor to the terminated Master Servicer hereunder in
the assumption of all or any part of the responsibilities, duties or liabilities
of the Master Servicer hereunder; provided, however, that any such institution
appointed as a successor Master Servicer shall not, as evidenced in writing by
each Rating Agency, adversely affect the then current rating of any Class of
Certificates immediately prior to the termination of the terminated Master
Servicer. The appointment of a successor Master Servicer shall not affect any
liability of the predecessor Master Servicer which may have arisen under this
Agreement prior to its termination as Master Servicer, nor shall any successor
Master Servicer be liable for any acts or omissions of the predecessor Master
Servicer or for any breach by the Master Servicer of any of its representations
or warranties contained herein or in any related document or agreement. Pending
appointment of a successor to a terminated Master Servicer hereunder, unless the
Trustee is prohibited by law from so acting, the Trustee shall act in such
capacity as provided above. The Trustee and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effectuate any
such succession. All Master Servicing Transfer Costs shall be paid by the
predecessor Master Servicer (unless the predecessor Master Servicer is the
Trustee, in which event the previous Master Servicer shall be responsible for
payment of such costs and expenses so long as the transfer of servicing is not
the result of an Event of Default on the part of the Trustee in its capacity as
the predecessor Master Servicer) upon presentation of reasonable documentation
of such costs, and if such predecessor Master Servicer defaults in its
obligation to pay such costs, such costs shall be paid by the successor Master
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Servicer or the Trustee (in which case the successor Master Servicer or the
Trustee shall be entitled to reimbursement therefor from the assets of the
Trust).
(b) In connection with the appointment of a successor Master Servicer or
the assumption of the duties of the Master Servicer, as specified in Section
8.05(a), the Trustee may make such arrangements for the compensation of such
successor as it and such successor shall agree; provided, however, that such
compensation shall not exceed the compensation of the Master Servicer being
replaced.
(c) Any successor, including the Trustee, to the Master Servicer as master
servicer shall during the term of its service as master servicer maintain in
force (i) a policy or policies of insurance covering errors and omissions in the
performance of its obligations as master servicer hereunder and (ii) a fidelity
bond in respect of its officers, employees and agents to the same extent as the
Master Servicer is so required pursuant to Section 3.03.
Section 8.06 Notification to Certificateholders.
Upon any termination or appointment of a successor to the Master Servicer
pursuant to this Article VIII, the Securities Administrator shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register and to each Rating Agency.
ARTICLE IX
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee and Securities Administrator.
(a) (i) The Trustee and the Securities Administrator, prior to the
occurrence of an Event of Default and after the curing or waiver of all Events
of Default which may have occurred, each undertake to perform such duties and
only such duties as are specifically set forth in this Agreement as duties of
the Trustee and the Securities Administrator, respectively. In case an Event of
Default has occurred of which a Responsible Officer of the Trustee shall have
actual knowledge (which has not been cured or waived), the Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and use
the same degree of care and skill in their exercise as a reasonably prudent
investor would exercise or use under the circumstances in the conduct of such
investor's own affairs. In case an Event of Default has occurred of which a
Responsible Officer of the Securities Administrator shall have actual knowledge
(which has not been cured or waived), the Securities Administrator shall
exercise such of the rights and powers vested in it by this Agreement, and use
the same degree of care and skill in their exercise as a reasonably prudent
investor would exercise or use under the circumstances in the conduct of such
investor's own affairs.
The Trustee and the Securities Administrator, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee and the Securities Administrator
which are specifically required to be furnished pursuant to any provision of
this Agreement, shall examine them to determine whether they conform to the
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requirements of this Agreement; provided, however, that neither the Trustee nor
the Securities Administrator shall be responsible for the accuracy of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Master Servicer or the Depositor hereunder.
(b) No provision of this Agreement shall be construed to relieve the
Trustee or the Securities Administrator from liability for its own grossly
negligent action, its own grossly negligent failure to act or its own willful
misfeasance; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all such Events of Default which may have occurred, the
duties and obligations of the Trustee and the Securities Administrator
shall be determined solely by the express provisions of this Agreement, the
Trustee and the Securities Administrator shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this Agreement, no implied covenants or obligations shall be read into this
Agreement against the Trustee and the Securities Administrator and, in the
absence of bad faith on the part of the Trustee and the Securities
Administrator, the Trustee and the Securities Administrator may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished
to the Trustee and the Securities Administrator by the Depositor or the
Master Servicer and which on their face, do not contradict the requirements
of this Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
grossly negligent in ascertaining the pertinent facts;
(iii) The Trustee and the Securities Administrator shall not be
personally liable with respect to any action taken, suffered or omitted to
be taken by it in good faith in accordance with the direction of
Certificateholders as provided in Section 8.03;
(iv) The Trustee shall not be charged with knowledge of any default or
an Event of Default under Section 8.01 unless a Responsible Officer of the
Trustee obtains actual knowledge of such default or Event of Default or any
Responsible Officer of the Trustee receives written notice of such default
or Event of Default at its Corporate Trust Office from the Master Servicer,
the Securities Administrator, the Depositor or any Certificateholder. The
Securities Administrator shall not be charged with knowledge of any default
or an Event of Default under Section 8.01 unless a Responsible Officer of
the Securities Administrator obtains actual knowledge of such failure or
event or any Responsible Officer of the Securities Administrator receives
written notice of such default or Event of Default at its Corporate Trust
Office from the Master Servicer, the Trustee, the Depositor or any
Certificateholder; and
(v) No provision in this Agreement shall require the Trustee or the
Securities Administrator to expend or risk its own funds or otherwise incur
any personal financial liability in the performance of any of its duties as
Trustee or Securities Administrator hereunder, or in the exercise of any of
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its rights or powers, if the Trustee or the Securities Administrator shall
have reasonable grounds for believing that repayment of funds or adequate
indemnity or security satisfactory to it against such risk or liability is
not reasonably assured to it and none of the provisions contained in this
Agreement shall in any event require the Securities Administrator to
perform, or be responsible for the manner of performance of, any of the
obligations of the Master Servicer under this Agreement.
(c) Subject to the conditions set forth in this Section 9.01(c), the
Securities Administrator is permitted to utilize one or more Subcontractors to
perform certain of its obligations hereunder. The Securities Administrator shall
promptly upon request provide to the Depositor a written description (in form
and substance satisfactory to the Depositor) of the role and function of each
Subcontractor utilized by the Securities Administrator, specifying (i) the
identity of each such Subcontractor that is a Servicing Function Participant and
(ii) which elements of the Servicing Criteria will be addressed in Assessments
of Compliance provided by each Servicing Function Participant. As a condition to
the utilization by the Securities Administrator of any Servicing Function
Participant, the Securities Administrator shall cause any such Servicing
Function Participant for the benefit of the Depositor to comply with the
provisions of Section 3.21 of this Agreement to the same extent as if such
Servicing Function Participant were the Securities Administrator. The Securities
Administrator shall be responsible for obtaining from each such Servicing
Function Participant and delivering to the applicable Persons any Assessment of
Compliance and related Attestation Report required to be delivered by such
Servicing Function Participant under Section 3.21, in each case as and when
required to be delivered.
Notwithstanding the foregoing, if the Securities Administrator engages a
Subcontractor in connection with the performance of any of its duties under this
Agreement, the Securities Administrator shall be responsible for determining
whether such Subcontractor is an Additional Servicer.
The Securities Administrator shall indemnify the Depositor, the Sponsor,
the Trustee, the Custodian, the Master Servicer and any of their respective
directors, officers, employees or agents and hold them harmless against any and
all claims, losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain in any way related to a breach of the
Securities Administrator's obligation set forth in the preceding paragraph or
the failure of the Securities Administrator to perform any of its obligations
under Section 3.20, Section 3.21, Section 3.22 or this Section 9.01(c).
(d) The Trustee is hereby directed, on or prior to the Closing Date, not in
its individual capacity but solely on behalf of the Trust, to execute and
deliver the BANA Servicing Agreement and each assignment and recognition
agreement constituting a portion of a Servicing Agreement in the forms presented
to it by the Depositor, for the benefit of the Holders of the Certificates. The
Trustee shall not be personally liable for the payment of any indebtedness or
expenses of the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trustee on behalf
of the Trust under any Servicing Agreement or any other related documents, as to
all of which recourse shall be had solely to the assets of the Trust in
accordance with the terms of this Agreement. Every provision of this Agreement
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relating to the conduct or affecting the liability of or affording protection to
the Trustee shall apply to the Trustee's execution of any Servicing Agreement
and the performance of any obligations thereunder.
Section 9.02 Certain Matters Affecting the Trustee and the Securities
Administrator.
Except as otherwise provided in Section 9.01:
(i) The Trustee and the Securities Administrator may request and rely
upon and shall be protected in acting or refraining from acting upon any
resolution, Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties and the manner of obtaining consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be
subject to the reasonable regulations as the Trustee and the Securities
Administrator, as applicable, may prescribe;
(ii) The Trustee and the Securities Administrator may consult with
counsel and any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such Opinion of Counsel;
(iii) Neither the Trustee nor the Securities Administrator shall be
under any obligation to exercise any of the trusts or powers vested in it
by this Agreement or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any
of the Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee or the
Securities Administrator, as the case may be, reasonable security or
indemnity satisfactory to it against the costs, expenses and liabilities
which may be incurred therein or thereby; however, subject to Section
9.01(b)(v), nothing contained herein shall relieve the Trustee or the
Securities Administrator of the obligation, upon the occurrence of an Event
of Default (which has not been cured or waived), to exercise such of the
rights and powers vested in it by this Agreement, and to use the same
degree of care and skill in their exercise as a prudent investor would
exercise or use under the circumstances in the conduct of such investor's
own affairs;
(iv) Neither the Trustee nor the Securities Administrator shall be
personally liable for any action taken, suffered or omitted by it in good
faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default which may have occurred,
neither the Trustee nor the Securities Administrator shall be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless requested
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in writing so to do by Holders of Certificates of any Class evidencing, as
to such Class, Percentage Interests, aggregating not less than 50%;
provided, however, that if the payment within a reasonable time to the
Trustee or the Securities Administrator of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee or the Securities Administrator, as the
case may be, not reasonably assured to the Trustee or the Securities
Administrator, as applicable, by the security afforded to it by the terms
of this Agreement, the Trustee or the Securities Administrator, as the case
may be, may require reasonable indemnity or security satisfactory to it
against such expense or liability or payment of such estimated expenses as
a condition to so proceeding;
(vi) The Trustee and the Securities Administrator may each execute any
of the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, attorneys, accountants, custodian or
independent contractor; and
(vii) The right of the Trustee or the Securities Administrator to
perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and neither the Trustee nor the Securities
Administrator shall be answerable for other than its gross negligence or
willful misconduct in the performance of any such act.
Section 9.03 Neither Trustee nor Securities Administrator Liable for
Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
execution of, and the authentication on the Certificates) shall be taken as the
statements of the Depositor or the Master Servicer, as applicable, and neither
the Trustee nor the Securities Administrator assumes responsibility for their
correctness. Neither the Trustee nor the Securities Administrator makes any
representations as to the validity or sufficiency of this Agreement or of the
Certificates or any Mortgage Loans save that the Trustee and the Securities
Administrator represent that, assuming due execution and delivery by the other
parties hereto, this Agreement has been duly authorized, executed and delivered
by it and constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms, subject, as to enforcement of remedies,
to applicable insolvency, receivership, moratorium and other laws affecting the
rights of creditors generally, and to general principles of equity and the
discretion of the court (regardless of whether enforcement of such remedies is
considered in a proceeding in equity or at law).
Neither the Trustee nor the Securities Administrator shall at any time have
any responsibility or liability for or with respect to the legality, validity
and enforceability of any Mortgage or any Mortgage Loan, or the perfection and
priority of any Mortgage or the maintenance of any such perfection and priority
or for or with respect to the sufficiency of the Trust or its ability to
generate the payments to be distributed to Certificateholders under this
Agreement, including, without limitation: the existence, condition and ownership
of any Mortgaged Property; the existence and enforceability of any hazard
insurance thereon (other than if the Trustee shall assume the duties of the
Master Servicer pursuant to Section 8.05 and thereupon only for the acts or
omissions of the Trustee as the successor to the Master Servicer); the validity
of the assignment of any Mortgage Loan to the Trustee or of any intervening
assignment; the completeness of any Mortgage Loan; the performance or
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enforcement of any Mortgage Loan (other than if the Trustee shall assume the
duties of the Master Servicer pursuant to Section 8.05 and thereupon only for
the acts or omissions of the Trustee as successor to the Master Servicer); the
compliance by the Depositor or the Master Servicer with any warranty or
representation made under this Agreement or in any related document or the
accuracy of any such warranty or representation; any investment of monies by or
at the direction of the Master Servicer or any loss resulting therefrom, it
being understood that the Trustee and the Securities Administrator shall remain
responsible for any Trust property that it may hold in its individual capacity;
the acts or omissions of any of the Depositor, the Master Servicer (other than
if the Trustee shall assume the duties of the Master Servicer pursuant to
Section 8.05 and thereupon only for the acts or omissions of the Trustee as
successor to the Master Servicer), or any Mortgagor; any action of the Master
Servicer (other than if the Trustee shall assume the duties of the Master
Servicer pursuant to Section 8.05 and thereupon only for the acts or omissions
of the Trustee as successor to the Master Servicer) taken in the name of the
Trust or the Securities Administrator; the failure of the Master Servicer to act
or perform any duties required of it as agent of the Trust or the Securities
Administrator hereunder; or any action by the Trustee or the Securities
Administrator taken at the instruction of the Master Servicer (other than if the
Trustee shall assume the duties of the Master Servicer pursuant to Section 8.05
and thereupon only for the acts or omissions of the Trustee as successor to the
Master Servicer); provided, however, that the foregoing shall not relieve the
Trustee or the Securities Administrator of its obligation to perform its duties
under this Agreement, including, without limitation, the Trustee's review of the
Mortgage Files pursuant to Section 2.02. The Trustee shall file any continuation
statement with respect to any financing statement for which the Trustee is the
secured party in any public office at any time required to maintain the
perfection of any security interest or lien granted to it hereunder.
Section 9.04 Trustee and Securities Administrator May Own Certificates.
Each of the Trustee and the Securities Administrator in their individual or
any other capacities may become the owner or pledgee of Certificates with the
same rights it would have if it were not Trustee or the Securities Administrator
and may otherwise deal with the Master Servicer or any of its affiliates with
the same right it would have if it were not the Trustee or the Securities
Administrator.
Section 9.05 Eligibility Requirements for Trustee and the Securities
Administrator.
The Trustee and the Securities Administrator hereunder shall at all times
be (a) an institution the deposits of which are fully insured by the FDIC and
(b) a corporation or banking association organized and doing business under the
laws of the United States of America or of any State, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of not
less than $50,000,000.00 and subject to supervision or examination by Federal or
State authority and (c) with respect to every successor trustee or securities
administrator hereunder either an institution (i) the long-term unsecured debt
obligations of which are rated at least "A" by S&P and Fitch or (ii) whose
serving as Trustee or Securities Administrator hereunder would not result in the
lowering of the ratings originally assigned to any Class of Certificates. The
Trustee shall not be an affiliate of the Depositor, the Master Servicer or any
Servicer. If such corporation or banking association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
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Section 9.05, the combined capital and surplus of such corporation or banking
association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. The principal office of the
Trustee and the Securities Administrator (other than the initial Trustee or
Securities Administrator) shall be in a state with respect to which an Opinion
of Counsel has been delivered to such Trustee at the time such Trustee or
Securities Administrator is appointed Trustee or Securities Administrator to the
effect that the Trust will not be a taxable entity under the laws of such state.
In case at any time the Trustee or the Securities Administrator shall cease to
be eligible in accordance with the provision of this Section 9.05, the Trustee
or the Securities Administrator, as the case may be, shall resign immediately in
the manner and with the effect specified in Section 9.06.
The Securities Administrator (i) may not be an originator, the Master
Servicer, Servicer, the Depositor or an affiliate of the Depositor unless the
Securities Administrator is in an institutional trust department, (ii) must be
authorized to exercise corporate trust powers under the laws of its jurisdiction
of organization, and (iii) must be either an institution (a) the long-term
unsecured debt obligations of which are rated at least "A" by S&P and Fitch or
(b) whose serving as Securities Administrator hereunder would not result in the
lowering of the ratings originally assigned to any Class of Certificates. If no
successor Securities Administrator shall have been appointed and shall have
accepted appointment within 60 days after the Securities Administrator ceases to
be the Securities Administrator pursuant to this Section 9.05, then the Trustee
shall perform the duties of the Securities Administrator pursuant to this
Agreement. Notwithstanding the above, the Trustee may, if it shall be unwilling
so to act, or shall, if it is legally unable so to act, appoint, or petition a
court of competent jurisdiction to appoint, an institution qualified under
Section 9.05 hereof as the successor to the Securities Administrator hereunder
in the assumption of all or any part of the responsibilities, duties or
liabilities of a Securities Administrator hereunder; provided, however, that any
such institution appointed as successor Securities Administrator shall not, as
evidenced in writing by each Rating Agency, adversely affect the then current
rating of any Class of Certificates immediately prior to the termination of the
Securities Administrator. The Trustee shall notify the Rating Agencies of any
change of the Securities Administrator.
Section 9.06 Resignation and Removal of Trustee and the Securities
Administrator.
The Trustee or the Securities Administrator may at any time resign and be
discharged from the trust hereby created by giving written notice thereof to the
Master Servicer and the Depositor and mailing a copy of such notice to all
Holders of record. The Trustee or the Securities Administrator, as applicable,
shall also mail a copy of such notice of resignation to each Rating Agency. Upon
receiving such notice of resignation, the Depositor shall use its best efforts
to promptly appoint a mutually acceptable successor Trustee or Securities
Administrator, as applicable, by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Trustee or Securities
Administrator, as applicable, and one copy to the successor Trustee or
Securities Administrator, as applicable. If no successor Trustee or Securities
Administrator, as the case may be, shall have been so appointed and shall have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee or Securities Administrator may petition any
court of competent jurisdiction for the appointment of a successor Trustee or
Securities Administrator.
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If at any time the Trustee or Securities Administrator shall cease to be
eligible in accordance with the provisions of Section 9.05 and shall fail to
resign after written request therefor by the Master Servicer, or if at any time
the Trustee or the Securities Administrator shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or the
Securities Administrator or of their respective property shall be appointed, or
any public officer shall take charge or control of the Trustee or the Securities
Administrator or of their respective property or affairs for the purpose of
rehabilitation, conservation or liquidation, or if at any time the Securities
Administrator has failed to duly perform, within the required time period, its
obligations under Section 3.20, Section 3.21 or Section 3.22, then the Master
Servicer or the Depositor may remove the Trustee or the Securities
Administrator, as the case may be, and appoint a successor trustee or securities
administrator by written instrument, in duplicate, one copy of which instrument
shall be delivered to the Trustee or the Securities Administrator, as
applicable, so removed and one copy to the successor.
The Holders of Certificates evidencing not less than 50% of the Voting
Rights may at any time remove the Trustee or the Securities Administrator by
written instrument or instruments delivered to the Master Servicer and the
Trustee or the Securities Administrator, as applicable; the Master Servicer
shall thereupon use their best efforts to appoint a mutually acceptable
successor Trustee or Securities Administrator, as the case may be, in accordance
with this Section 9.06.
Any resignation or removal of the Trustee or the Securities Administrator
and appointment of a successor Trustee pursuant to any of the provisions of this
Section 9.06 shall become effective upon acceptance of appointment by the
successor Trustee or Securities Administrator, as the case may be, as provided
in Section 9.07.
Notwithstanding anything to the contrary contained herein, the Master
Servicer and the Securities Administrator shall at all times be the same Person.
Section 9.07 Successor Trustee or Securities Administrator.
Any successor Trustee or successor Securities Administrator appointed as
provided in Section 9.06 shall execute, acknowledge and deliver to the Master
Servicer and to its predecessor Trustee or Securities Administrator, as
applicable, an instrument accepting such appointment hereunder, and thereupon
the resignation or removal of the predecessor Trustee or Securities
Administrator shall become effective and such successor Trustee or Securities
Administrator, as the case may be, without any further act, deed or conveyance,
shall become fully vested with all the rights, powers, duties and obligations of
its predecessor hereunder, with like effect as if originally named as Trustee or
Securities Administrator, as applicable, herein. The predecessor Trustee or
Securities Administrator shall duly assign, transfer, deliver and pay over to
the successor Trustee or Securities Administrator, as the case may be, the whole
of the Mortgage Files and related documents and statements held by it hereunder,
together with all instruments of transfer and assignment or other documents
properly executed as may be reasonably required to effect such transfer and such
of the records or copies thereof maintained by the predecessor Trustee or
Securities Administrator in the administration hereof as may be reasonably
requested by the successor Trustee or Securities Administrator, as the case may
be, and shall thereupon be discharged from all duties and responsibilities under
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this Agreement; provided, however, that if the predecessor Trustee or Securities
Administrator has been removed pursuant to the third paragraph of Section 9.06,
all reasonable expenses of the predecessor Trustee or Securities Administrator
incurred in complying with this Section 9.07 shall be reimbursed by the Trust.
No successor Trustee or Securities Administrator shall accept appointment
as provided in this Section 9.07 unless at the time of such appointment such
successor Trustee or Securities Administrator, as the case may be, shall be
eligible under the provisions of Section 9.05.
Upon acceptance of appointment by a successor Trustee or Securities
Administrator, as applicable, as provided in this Section 9.07, the Master
Servicer shall cooperate to mail notice of the succession of such Trustee or
Securities Administrator, as the case may be, hereunder to all Holders of
Certificates at their addresses as shown in the Certificate Register and to each
Rating Agency. If the Master Servicer fails to mail such notice within ten days
after acceptance of appointment by the successor Trustee or Securities
Administrator, the successor Trustee or Securities Administrator, as the case
may be, shall cause such notice to be mailed at the expense of the Master
Servicer.
Section 9.08 Merger or Consolidation of Trustee or Securities
Administrator.
Any corporation or banking association into which either the Trustee or the
Securities Administrator may be merged or converted or with which it may be
consolidated, or any corporation or banking association resulting from any
merger, conversion or consolidation to which the Trustee or the Securities
Administrator shall be a party, or any corporation or banking association
succeeding to all or substantially all of the corporate trust business of the
Trustee or the Securities Administrator, shall be the successor of the Trustee
or the Securities Administrator, as applicable, hereunder, if such corporation
or banking association is eligible under the provisions of Section 9.05, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding. In
connection with the succession to the Trustee or the Securities Administrator
under this Agreement by any Person (i) into which the Trustee or the Securities
Administrator may be merged or consolidated, or (ii) which may be appointed as a
successor to the Trustee or the Securities Administrator, the Trustee or the
Securities Administrator, as the case may be, shall notify the Depositor of such
succession or appointment and shall furnish to the Depositor in writing and in
form and substance reasonably satisfactory to the Depositor, all information
reasonably necessary for the Securities Administrator to accurately and timely
report, pursuant to Section 3.22(d), the event under Item 6.02 of Form 8-K
pursuant to the Exchange Act (if such reports under the Exchange Act are
required to be filed under the Exchange Act).
Section 9.09 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any of the provisions hereof, at any time, for the purpose
of meeting any legal requirements of any jurisdiction in which any Mortgaged
Property may at the time be located or for any other reason, the Master Servicer
and the Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the Trustee
as co-trustee or separate trustee of all or any part of the Trust Estate, and to
vest in such Person or Persons, in such capacity, such title to the Trust
Estate, or any part thereof, and, subject to the other provision of this Section
9.09, such powers, duties, obligations, rights and trusts as the Master Servicer
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and the Trustee may consider necessary or desirable. If one or both of the
Master Servicer shall not have joined in such appointment within ten days after
the receipt by it of a request to do so, the Trustee alone shall have the power
to make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor Trustee under Section
9.05 and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 9.07. The
Securities Administrator shall be responsible for the fees of any co-trustee or
separate trustee appointed hereunder.
In the case of any appointment of a co-trustee or separate trustee pursuant
to this Section 9.09, all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly, except
to the extent that under any law of any jurisdiction in which any particular act
or acts are to be performed (whether as Trustee hereunder or as successor to the
Master Servicer hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Estate or any portion
thereof in any such jurisdiction) shall be exercised and performed by such
separate trustee or co-trustee at the direction of the Trustee. No trustee
hereunder shall be held personally liable by reason of any act or omission of
any other trustee hereunder; provided, however, that no appointment of a
co-trustee or separate trustee hereunder shall relieve the Trustee of its
obligations hereunder.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article IX. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall become incapable of acting, resign or be removed, or shall be adjudged a
bankrupt or insolvent, or a receiver of its property shall be appointed, or any
public officer shall take charge or control of such trustee or co-trustee or of
its property or affairs for the purpose of rehabilitation, conservation or
liquidation, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
Section 9.10 Authenticating Agents.
The Securities Administrator may appoint one or more authenticating agents
("Authenticating Agents") that shall be authorized to act on behalf of the
Securities Administrator in authenticating or countersigning Certificates.
Initially, the Authenticating Agent shall be Xxxxx Fargo Bank, N.A. Wherever
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reference is made in this Agreement to the authentication or countersigning of
Certificates by the Securities Administrator or the Securities Administrator's
certificate of authentication or countersigning, such reference shall be deemed
to include authentication or countersigning on behalf of the Securities
Administrator by an Authenticating Agent and a certificate of authentication or
countersignature executed on behalf of the Securities Administrator by an
Authenticating Agent. Each Authenticating Agent must be acceptable to the Master
Servicer and must be a corporation or banking association organized and doing
business under the laws of the United States of America or of any State, having
a place of business in New York, New York, having a combined capital and surplus
of at least $15,000,000, authorized under such laws to do a trust business and
subject to supervision or examination by Federal or State authorities.
Any corporation or banking association into which any Authenticating Agent
may be merged or converted or with which it may be consolidated, or any
corporation or banking association resulting from any merger, conversion or
consolidation to which any Authenticating Agent shall be a party, or any
corporation or banking association succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Securities Administrator or the Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written notice of
resignation to the Securities Administrator and to the Master Servicer. The
Securities Administrator may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Master Servicer. Upon receiving a notice of
resignation or upon such a termination, or in case, at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 9.10, the Securities Administrator may appoint a
successor Authenticating Agent, shall give written notice of such appointment to
the Master Servicer and shall mail notice of such appointment to all
Certificateholders. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent.
Section 9.11 Securities Administrator's Fees and Expenses and Trustee's
Fees and Expenses.
The Trustee, as compensation for its services hereunder, shall be entitled
to a fee in an amount agreed upon between the Trustee and the Securities
Administrator, payable by the Securities Administrator out of its own funds and
not out of any funds of the Trust Estate. The Securities Administrator shall be
entitled to investment income from amounts on deposit in the Certificate Account
as compensation for its services hereunder. The Trustee and the Securities
Administrator, as the case may be, and any director, officer, employee or agent
of the Trustee or the Securities Administrator, as the case may be, shall be
indemnified and held harmless by the Trust against any claims, damage, loss,
liability or expense (including reasonable attorney's fees) (a) incurred in
connection with or arising from or relating to (i) this Agreement, (ii) the
Certificates, or (iii) the performance of any of the Trustee's or Securities
Administrator's, as the case may be, duties hereunder, other than any claims,
damage, loss, liability or expense incurred by reason of willful misfeasance,
bad faith or gross negligence in the performance of any of the Trustee's or
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Securities Administrator's, as the case may be, duties hereunder, (b) resulting
from any tax or information return which was prepared by, or should have been
prepared by, the Master Servicer and (c) arising out of the transfer of any
ERISA-Restricted Certificate or the Residual Certificate not in compliance with
ERISA. Without limiting the foregoing, except as otherwise agreed upon in
writing by the Depositor and the Trustee or the Securities Administrator, and
except for any such expense, disbursement or advance as may arise from the
Trustee's or the Securities Administrator's gross negligence, bad faith or
willful misconduct, the Trust shall reimburse the Trustee and the Securities
Administrator for all reasonable expenses, disbursements and advances incurred
or made by the Trustee or the Securities Administrator in accordance with any of
the provisions of this Agreement to the extent permitted by Treasury Regulations
Section 1.860G-1(b)(3)(ii) and (iii). Except as otherwise provided herein,
neither the Trustee nor the Securities Administrator shall be entitled to
payment or reimbursement for any routine ongoing expenses incurred by the
Trustee or the Securities Administrator, as applicable, in the ordinary course
of its duties as Trustee or Securities Administrator, Certificate Registrar or
Paying Agent hereunder or for any other expenses. The provisions of this Section
9.11 shall survive the termination of this Agreement or the resignation or
removal of the Trustee or the Securities Administrator, as applicable,
hereunder.
Section 9.12 Appointment of Custodian.
The Trustee may at any time on or after the Closing Date, with the consent
of the Depositor and the Master Servicer, appoint one or more Custodians to hold
all or a portion of the Mortgage Files as agent for the Trustee, by entering
into a custodial agreement in a form acceptable to the Depositor and the Master
Servicer. Subject to this Article IX, the Trustee agrees to enforce the terms
and provisions thereof against the Custodian for the benefit of the
Certificateholders. Each Custodian shall be a depository institution subject to
supervision by federal or state authority, shall have a combined capital and
surplus of at least $10,000,000 and shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File.
Each Custodian shall indemnify the Depositor, the Sponsor, the Trustee, the
Master Servicer, the Securities Administrator and any of their respective
directors, officers, employees or agents and hold them harmless against any and
all claims, losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and any other reasonable
costs, fees and expenses that any of them may sustain in any way related to the
failure of a Custodian to perform any of its obligations under Section 3.21.
Notwithstanding the foregoing, in no event shall a Custodian be liable for any
consequential, indirect or punitive damages pursuant to this Section 9.12.
Section 9.13 Paying Agents.
The Securities Administrator may appoint one or more Paying Agents (each, a
"Paying Agent") which shall be authorized to act on behalf of the Securities
Administrator in making withdrawals from the Certificate Account and
distributions to Certificateholders as provided in Section 3.09 and Section
5.02. Wherever reference is made in this Agreement to the withdrawal from the
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Certificate Account by the Securities Administrator, such reference shall be
deemed to include such a withdrawal on behalf of the Securities Administrator by
a Paying Agent. Initially, the Paying Agent shall be Xxxxx Fargo Bank, N.A.
Whenever reference is made in this Agreement to a distribution by the Securities
Administrator or the furnishing of a statement by the Securities Administrator,
such reference shall be deemed to include such a distribution or furnishing on
behalf of the Securities Administrator by a Paying Agent. Each Paying Agent
shall provide to the Securities Administrator such information concerning the
Certificate Account as the Securities Administrator shall request from time to
time. Each Paying Agent must be reasonably acceptable to the Master Servicer and
must be a corporation or banking association organized and doing business under
the laws of the United States of America or of any state, having (except in the
case of the Trustee or the Securities Administrator) a principal office and
place of business in New York, New York, having a combined capital and surplus
of at least $15,000,000, authorized under such laws to do a trust business and
subject to supervision or examination by federal or state authorities. Any fees
and expenses (but not including any indemnity payments) of a Paying Agent
appointed pursuant to this Agreement shall be payable by the Securities
Administrator out of its own funds and not out of any funds in the Trust Estate.
Any corporation into which any Paying Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which any Paying Agent shall be a party, or any
corporation succeeding to the corporate agency business of any Paying Agent,
shall continue to be the Paying Agent provided that such corporation after the
consummation of such merger, conversion, consolidation or succession meets the
eligibility requirements of this Section 9.13.
Any Paying Agent may at any time resign by giving written notice of
resignation to the Trustee, the Securities Administrator and to the Master
Servicer; provided that the Paying Agent has returned to the Certificate Account
or otherwise accounted, to the reasonable satisfaction of the Securities
Administrator, for all amounts it has withdrawn from the Certificate Account.
The Securities Administrator may, upon prior written approval of the Master
Servicer, at any time terminate the agency of any Paying Agent by giving written
notice of termination to such Paying Agent and to the Master Servicer. Upon
receiving a notice of resignation or upon such a termination, or in case at any
time any Paying Agent shall cease to be eligible in accordance with the
provisions of the first paragraph of this Section 9.13, the Securities
Administrator may appoint, upon prior written approval of the Master Servicer, a
successor Paying Agent, shall give written notice of such appointment to the
Master Servicer and shall mail notice of such appointment to all
Certificateholders. Any successor Paying Agent upon acceptance of its
appointment hereunder shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally
named as Paying Agent. The Securities Administrator shall remain liable for any
duties and obligations assumed by its appointed Paying Agent.
Section 9.14 Limitation of Liability.
The Certificates are executed by the Securities Administrator, not in its
individual capacity but solely as Securities Administrator of the Trust, in the
exercise of the powers and authority conferred and vested in it by this
Agreement. Each of the undertakings and agreements made on the part of the
Securities Administrator in the Certificates is made and intended not as a
personal undertaking or agreement by the Securities Administrator but is made
and intended for the purpose of binding only the Trust.
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Section 9.15 Trustee or Securities Administrator May Enforce Claims Without
Possession of Certificates.
All rights of action and claims under this Agreement or the Certificates
may be prosecuted and enforced by the Trustee or the Securities Administrator
without the possession of any of the Certificates or the production thereof in
any proceeding relating thereto, and such preceding instituted by the Trustee or
the Securities Administrator shall be brought in its own name or in its capacity
as Trustee or Securities Administrator. Any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursement
and advances of the Trustee, its agents and counsel, be for the ratable benefit
of the Certificateholders in respect of which such judgment has been recovered.
Section 9.16 Suits for Enforcement.
In case an Event of Default or other default by the Master Servicer or the
Depositor hereunder shall occur and be continuing, the Trustee, in its
discretion, may proceed to protect and enforce its rights and the rights of the
Holders of Certificates under this Agreement by a suit, action or proceeding in
equity or at law or otherwise, whether for the specific performance of any
covenant or agreement contained in this Agreement or in aid of the execution of
any power granted in this Agreement or for the enforcement of any other legal,
equitable or other remedy, as the Trustee, being advised by counsel, shall deem
most effectual to protect and enforce any of the rights of the Trustee and the
Certificateholders.
Section 9.17 Waiver of Bond Requirement.
The Trustee shall be relieved of, and each Certificateholder hereby waives,
any requirement of any jurisdiction in which the Trust, or any part thereof, may
be located that the Trustee post a bond or other surety with any court, agency
or body whatsoever.
Section 9.18 Waiver of Inventory, Accounting and Appraisal Requirement.
The Trustee shall be relieved of, and each Certificateholder hereby waives,
any requirement of any jurisdiction in which the Trust, or any part thereof, may
be located that the Trustee file any inventory, accounting or appraisal of the
Trust with any court, agency or body at any time or in any manner whatsoever.
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase or Liquidation of All Mortgage
Loans.
Subject to Section 10.02, the respective obligations and responsibilities
of the Depositor, the Master Servicer, the Securities Administrator and the
Trustee created hereby (other than the obligation of the Securities
Administrator to make certain payments to Certificateholders after the Final
Distribution Date and to send certain notices as hereinafter set forth and the
obligations of the Securities Administrator pursuant to Sections 5.05(b) and
5.06(b)) shall terminate upon the last action required to be taken by the
Securities Administrator on the Final Distribution Date pursuant to this Article
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X following the earlier of (a) the later of (I) the purchase by the Master
Servicer of all of the Mortgage Loans and all related REO Property remaining in
the Trust Estate at a price equal to the sum of (x) 100% of the unpaid principal
balance of each Mortgage Loan (other than any Mortgage Loan as to which REO
Property has been acquired and whose fair market value is included pursuant to
clause (y) below), (y) the fair market value of such REO Property plus one
month's interest at the related Mortgage Interest Rate on the unpaid principal
balance of each Mortgage Loan (including any Mortgage Loan as to which REO
Property has been acquired) and (z) any Reimbursement Amount owed to the Trust
pursuant to Section 2.02.
The Master Servicer may not exercise its purchase option for the Mortgage
Loans until all Reimbursement Amounts for such Mortgage Loans have been paid.
The Securities Administrator shall notify the Sponsor, upon notice of the Master
Servicer's intent to exercise its purchase option of any related Reimbursement
Amounts outstanding.
Regardless of the foregoing, in no event shall the Trust created hereby
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United
States to the Court of St. Xxxxx, living on the date hereof.
The right of the Master Servicer to exercise its purchase option with
respect to the Mortgage Loans is conditioned upon (A) the aggregate Stated
Principal Balance of all the Mortgage Loans being less than 1% of the aggregate
unpaid principal balance of all the Mortgage Loans as of the Cut-off Date and
(B) the purchase price calculated pursuant to clause (a)(I) of the first
paragraph of this Section 10.01 being less than or equal to the aggregate fair
market value of the Mortgage Loans (other than any Mortgage Loan as to which REO
Property has been acquired) and the related REO Properties; provided, however,
that this clause (B) shall not apply to any purchase by the Master Servicer if,
at the time of the purchase, the Master Servicer is no longer subject to
regulation by the Office of the Comptroller of the Currency, the FDIC, the
Federal Reserve or the OTS. Fair market value for purposes of this paragraph and
the first paragraph of this Section 10.01 will be determined by the Master
Servicer as of the close of business on the third Business Day next preceding
the date upon which notice of any such termination is furnished to
Certificateholders pursuant to this Article X. If such right is exercised, the
Trustee (or Custodian on the Trustee's behalf) shall, promptly following payment
of the purchase price, release to the Master Servicer or its designee the
Mortgage Files pertaining to the Mortgage Loans being purchased. The Master
Servicer's right, title and interest in and to such purchased Mortgage Loans and
the related Mortgage Files shall be subject to the servicing rights of the
Servicers pursuant to the related Servicing Agreements.
Notice of the exercise of any purchase option pursuant to this Section
10.01 and notice of any termination of the Trust or any portion of the Trust,
specifying the Final Distribution Date or the applicable Distribution Date, upon
which the applicable Certificateholders may surrender their Certificates to the
Securities Administrator for payment of the final distribution and for
cancellation, shall be given promptly by the Securities Administrator by letter
to the Certificateholders mailed not earlier than the 10th day and not later
than the 15th day of the month next preceding the month of such final
distribution specifying (1) the Final Distribution Date or the applicable
Distribution Date, upon which final payment of the applicable Certificates will
be made upon presentation and surrender of such Certificates at the office or
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agency of the Securities Administrator therein designated, (2) the amount of any
such final payment and (3) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the applicable Certificates at the office or agency of the
Securities Administrator therein specified.
Upon the exercise of its purchase option, the applicable party shall remit
to the Securities Administrator for deposit to the Certificate Account on or
before the Final Distribution Date or the applicable Distribution Date, in
immediately available funds an amount equal to the amount necessary to make the
amount, if any, on deposit in the Certificate Account on such Final Distribution
Date or Distribution Date, as applicable, equal to the purchase price for the
related assets of the Trust Estate or any portion of the Trust Estate computed
as above provided together with a statement as to the amount to be distributed
on each applicable Class of Certificates pursuant to the next succeeding
paragraph.
Upon the exercise of any purchase option pursuant to this Section 10.01,
the Trustee shall assign to the applicable party exercising its purchase option
each of the applicable mortgage loan representations and warranties made
pursuant to the applicable Servicing Agreement, underlying sale agreement and
the Mortgage Loan Purchase Agreement, without recourse, representation or
warranty.
Upon presentation and surrender of the applicable Certificates, the
Securities Administrator shall cause to be distributed to Certificateholders of
each Class, in the order set forth in Section 5.02 hereof on the Final
Distribution Date or the applicable Distribution Date, and in proportion to
their respective Percentage Interests, with respect to Certificateholders of the
same Class, all cash on hand with respect to the related REMICs (other than the
amounts retained to meet claims). An amount shall be distributed in respect of
interest and principal to the Uncertificated Lower-Tier Interests, as
applicable, in the same manner as principal and interest are distributed to such
Uncertificated Lower-Tier Interests, respectively, as provided in Section 5.02.
If the applicable Certificateholders do not surrender their Certificates
for final payment and cancellation on or before the Final Distribution Date, the
Securities Administrator shall on such date cause all related funds in the
Certificate Account not distributed in final distribution to such
Certificateholders of such Group to continue to be held by the Securities
Administrator in an Eligible Account for the benefit of such Certificateholders
and the Securities Administrator shall give a second written notice to the
remaining applicable Certificateholders to surrender their Certificates for
cancellation and receive a final distribution with respect thereto. If within
one (1) year after the second notice all the applicable Certificates shall not
have been surrendered for cancellation, the Securities Administrator may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining applicable Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds on deposit in
such Eligible Account.
Section 10.02 Additional Termination Requirements.
(a) If a party exercises its purchase option as provided in Section 10.01,
the related REMIC or REMICs shall be terminated in accordance with the following
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additional requirements, unless the Securities Administrator and the Trustee
have received an Opinion of Counsel to the effect that the failure of the Trust
to comply with the requirements of this Section 10.02 will not (x) result in the
imposition of taxes on "prohibited transactions" or "prohibited contributions"
in respect of any REMIC created hereunder as defined in the REMIC Provisions, or
(y) cause any REMIC created hereunder to fail to qualify as a REMIC at any time
that any related Certificates are outstanding:
(i) Within 90 days prior to the related Final Distribution Date set
forth in the notice given by the Securities Administrator pursuant to
Section 10.01, the Securities Administrator shall adopt plans of
liquidation for each related REMIC created hereunder specifying the first
day in the 90-day liquidation period and meeting the requirements of a
"qualified liquidation" under Section 860F of the Code and any regulations
thereunder. The Securities Administrator shall attach such plans of
liquidation to each related REMIC's final tax return;
(ii) During such 90-day liquidation period, and at or prior to the
time of making the final payment on the related Certificates, the
Securities Administrator shall sell the related Mortgage Loans and REO
Properties to the Master Servicer, for cash;
(iii) On the date specified for final payment on the related
Certificates, the Securities Administrator shall make final distributions
of principal and interest on the related Certificates in accordance with
Section 5.02 and shall distribute or credit, or cause to be distributed or
credited, to holders of the Residual Certificates all cash on hand in the
related REMICs after such final payment (other than cash retained to meet
claims) in complete liquidation of the related REMICs; and
(iv) the Upper-Tier REMIC will be terminated on the same date that the
Lower-Tier REMIC is terminated.
(b) By its acceptance of the Residual Certificate, the Holder thereof
hereby agrees to take such other action in connection with such plan of complete
liquidation as may be reasonably requested by the Depositor, the Trustee or the
Securities Administrator and if such action is not requested, is deemed to adopt
such a plan of complete liquidation when the related Mortgage Loans are
purchased pursuant to Section 10.01.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.
This Agreement may be amended from time to time by the Depositor, the
Master Servicer, the Securities Administrator and the Trustee, without the
consent of any of the Certificateholders, (i) to cure any ambiguity or mistake,
(ii) to correct or supplement any provisions herein or therein which may be
inconsistent with any other provisions of this Agreement, any amendment to this
Agreement or the related Prospectus Supplement, (iii) to modify, eliminate or
add to any of its provisions to such extent as shall be necessary to maintain
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the qualification of any REMIC created hereunder as a REMIC within the meaning
of the Code and related regulations at all times that any related Certificates
are outstanding or to avoid or minimize the risk of the imposition of any tax on
any REMIC created hereunder that would be a claim against the Trust Estate,
provided that (a) the Trustee and the Securities Administrator have received an
Opinion of Counsel to the effect that such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of the imposition
of any such tax and (b) such action shall not, as evidenced by such Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder, (iv) to change the timing and/or nature of deposits into the
Certificate Account provided that (a) such change shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any Certificateholder and (b) such change shall not adversely affect the
then-current rating of the Certificates as evidenced by a letter from each
Rating Agency rating such Certificates to such effect, and (v) to make any other
provisions with respect to matters or questions arising under this Agreement
which shall not be materially inconsistent with the provisions of this
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder, provided that the amendment shall not be deemed to adversely
affect in any material respect the interests of the Certificateholders and no
Opinion of Counsel to that effect shall be required if the Person requesting the
amendment obtains a letter from each Rating Agency stating that the amendment
would not result in the downgrading or withdrawal of the respective ratings then
assigned to the Certificates. Notwithstanding any contrary provision of this
Agreement, the Trustee shall not consent to any amendment to this Agreement
pursuant to clause (i) through (vi) above unless it shall have first received an
Opinion of Counsel to the effect that such amendment shall not cause the
imposition of any United States federal income tax on any REMIC created
hereunder or the Certificateholders or cause any REMIC created hereunder to fail
to qualify as a REMIC within the meaning of the Code and related regulations at
any time that any Certificates are outstanding.
This Agreement may also be amended from time to time by the Depositor, the
Master Servicer, the Securities Administrator and the Trustee and the Holders of
Certificates of each Class of Certificates which is affected by such amendment,
evidencing, as to each such Class of Certificates, Percentage Interests
aggregating not less than 66-2/3%, for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Holders of such Certificates;
provided, however, that no such amendment shall (A) reduce in any manner the
amount of, or delay the timing of, collections of payments on Mortgage Loans or
distributions which are required to be made on any Certificate without the
consent of the Holder of such Certificate or (B) reduce the aforesaid percentage
required to consent to any such amendment, without the consent of the Holders of
all Certificates then outstanding.
Prior to the solicitation of consent of Certificateholders in connection
with any such amendment, the party seeking such amendment shall furnish the
Trustee and the Securities Administrator with an Opinion of Counsel stating that
such amendment would not adversely affect the qualification of any REMIC created
hereunder as a REMIC within the meaning of the Code and related regulations or
result in the imposition of any tax on any REMIC created hereunder and notice of
the conclusion expressed in such Opinion of Counsel shall be included with any
such solicitation.
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Promptly after the execution of any such amendment or consent the
Securities Administrator shall furnish written notification of the substance of
or a copy of such amendment to each Certificateholder and to each Rating Agency.
It shall not be necessary for the consent of Certificateholders under this
Section 11.01 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Securities Administrator may prescribe.
Prior to the execution of any amendment to this Agreement, each of the
Trustee and the Securities Administrator shall receive and be entitled to
conclusively rely on any Opinion of Counsel (at the expense of the Person
seeking such amendment) stating that such amendment is authorized and permitted
by this Agreement. The Trustee and the Securities Administrator may, but shall
not be obligated to, enter into any such amendment which affects the Trustee's
or the Securities Administrator's own rights, duties or immunities under this
Agreement.
Section 11.02 Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate public offices
for real property records in all the counties or other comparable jurisdictions
in which any or all of the properties subject to the Mortgages are situated, and
in any other appropriate public recording office or elsewhere, such recordation
to be effected by the Securities Administrator at its expense at the direction
of Holders of Certificates evidencing not less than 50% of all Voting Rights,
but only upon delivery to the Securities Administrator at the expense of the
requesting Certificateholders of an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as herein
provided and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and such counterparts shall constitute but one and the same
instrument.
Section 11.03 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust, or the obligations of the parties hereto, nor shall anything herein set
forth, or contained in the terms of the Certificates, be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any third
person by reason of any action taken by the parties to this Agreement pursuant
to any provision hereof.
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No Certificateholder shall have any right by virtue or by availing itself
of any provisions of this Agreement to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Securities Administrator a written
notice of default and of the continuance thereof, as provided herein, and unless
also the Holders of Certificates evidencing Percentage Interests aggregating not
less than 25% of each Class of Certificates affected thereby shall have made
written request upon the Securities Administrator to institute such action, suit
or proceeding in its own name as Securities Administrator hereunder and shall
have offered to the Securities Administrator such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby, and the Securities Administrator, for 60 days after its receipt of such
notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding; it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Securities Administrator, that no one or more Holders
of Certificates shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of the Certificates,
or to obtain or seek to obtain priority over or preference to any other such
Holder, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 11.03, each and every Certificateholder and the Securities Administrator
shall be entitled to such relief as can be given either at law or in equity.
Section 11.04 Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT
REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF (OTHER THAN SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW).
With respect to any claim arising out of this Agreement, each party
irrevocably submits to the exclusive jurisdiction of the courts of the State of
New York and the United States District Court located in the Borough of
Manhattan in The City of New York, and each party irrevocably waives any
objection which it may have at any time to the laying of venue of any suit,
action or proceeding arising out of or relating hereto brought in any such
courts, irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in any inconvenient forum and further
irrevocably waives the right to object, with respect to such claim, suit, action
or proceeding brought in any such court, that such court does not have
jurisdiction over such party, provided that service of process has been made by
any lawful means.
Section 11.05 Notices.
All demands, notices, instructions, directions, requests and communications
required or permitted to be delivered hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by certified
mail, return receipt requested, (provided, however, that notices to the
Securities Administrator may be delivered by facsimile and shall be deemed
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effective upon receipt) to (a) in the case of the Depositor, Banc of America
Funding Corporation, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Xxxxx Xxxxx, with a copy to: Bank of America Legal Department, 000
Xxxxx Xxxxx Xxxxxx, 30th Floor, NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Associate General Counsel, (b) in the case of the Master Servicer,
Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Client Manager - BAFC 2007-8, (c) in the case of the Securities
Administrator, Xxxxx Fargo Bank, N.A., X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Client Manager - BAFC, Series 2007-8, and for overnight delivery
purposes, Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000-0000, Attention: Client Manager - BAFC, Series 2007-8, with a copy to
Xxxxx Fargo Bank, N.A., Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx, 00000, Attention: Corporate Trust Services - BAFC, Series 2007-8, (d)
in the case of the Trustee, U.S. Bank National Association, 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Services,
BAFC, Series 0000-0, Xxxxxxxxx: Structured Finance Services, BAFC 2007-8; (e) in
the case of S&P, Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Residential Mortgage
Surveillance Group; and (f) in the case of Fitch, Fitch Ratings, Xxx Xxxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage
Surveillance Group or, as to each party, at such other address as shall be
designated by such party in a written notice to each other party. Any notice
required or permitted to be mailed to a Certificateholder shall be given by
first class mail, postage prepaid, at the address of such Holder as shown in the
Certificate Register. Any notice to a Certificateholder so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
Section 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.07 Certificates Nonassessable and Fully Paid.
It is the intention of the Securities Administrator that Certificateholders
shall not be personally liable for obligations of the Trust Estate, that the
beneficial ownership interests represented by the Certificates shall be
nonassessable for any losses or expenses of the Trust Estate or for any reason
whatsoever, and that Certificates upon execution, authentication and delivery
thereof by the Securities Administrator pursuant to Section 6.01 are and shall
be deemed fully paid.
Section 11.08 Access to List of Certificateholders.
The Certificate Registrar will furnish or cause to be furnished to the
Trustee and the Securities Administrator, within fifteen (15) days after the
receipt of a request by the Trustee and/or the Securities Administrator in
writing, a list, in such form as the Trustee and/or the Securities Administrator
may reasonably require, of the names and addresses of the Certificateholders as
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of the most recent Record Date for payment of distributions to
Certificateholders.
If three or more Certificateholders apply in writing to the Securities
Administrator, and such application states that the applicants desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and is accompanied by a copy of the
communication which such applicants propose to transmit, then the Securities
Administrator shall, within five (5) Business Days after the receipt of such
application, afford such applicants access during normal business hours to the
most recent list of Certificateholders held by the Securities Administrator. If
such a list is as of a date more than 90 days prior to the date of receipt of
such applicants' request, the Securities Administrator shall promptly request
from the Certificate Registrar a current list as provided above, and shall
afford such applicants access to such list promptly upon receipt.
Every Certificateholder, by receiving and holding such list, agrees with
the Certificate Registrar and the Securities Administrator that neither the
Certificate Registrar nor the Securities Administrator shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Certificateholders hereunder, regardless of the source from
which such information was derived.
Section 11.09 Recharacterization.
The parties to this Agreement intend the conveyance by the Depositor to the
Trustee of all of its right, title and interest in and to the Mortgage Loans and
the related Mortgage Files, 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)
and the Depositor's rights under the Mortgage Loan Purchase Agreement, including
the rights of the Depositor as assignee of the Sponsor with respect to the
Sponsor's rights under the Servicing Agreements pursuant to this Agreement to
constitute a purchase and sale and not a loan. Notwithstanding the foregoing, to
the extent that such conveyance is held not to constitute a sale under
applicable law, it is intended that this Agreement shall constitute a security
agreement under applicable law and that the Depositor shall be deemed to have
granted to the Trustee a first priority security interest in all of the
Depositor's right, title and interest in and to the Mortgage Loans.
Section 11.10 Regulation AB Compliance; Intent of the Parties;
Reasonableness.
The parties hereto acknowledge that interpretations of the requirements of
Regulation AB may change over time, whether due to interpretive guidance
provided by the Commission or its staff, consensus among participants in the
asset-backed securities markets, advice of counsel, or otherwise, and agree to
use its commercially reasonable efforts to comply with requests made by the
Depositor in good faith for delivery of information under these provisions on
the basis of evolving interpretations of Regulation AB. In connection with the
Trust, the Master Servicer, the Securities Administrator, the Trustee and the
Custodian shall cooperate fully with the Depositor to deliver to the Depositor
(including its assignees or designees), any and all statements, reports,
certifications, records and any other information available to such party and
reasonably necessary in the good faith determination of the Depositor to permit
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the Depositor to comply with the provisions of Regulation AB, together with such
disclosures relating to the Master Servicer, the Securities Administrator, the
Trustee and the Custodian, as applicable, reasonably believed by the Depositor
to be necessary in order to effect such compliance.
Section 11.11 Third Party Beneficiary.
Nothing in this Agreement or in the Certificates, expressed or implied,
shall give to any Person, other than the Certificateholders, the parties hereto
and their successors hereunder, any benefit or any legal or equitable right,
remedy or claim under this Agreement.
Section 11.12 Insolvency.
The Master Servicer, Securities Administrator, Depositor and Trustee shall
each notify the Depositor and the Securities Administrator of any of the events
enumerated in Item 1.03 of Form 8-K with respect to such party upon the
occurrence thereof and shall provide the Depositor and the Securities
Administrator with all information required by the Depositor to comply with its
reporting obligation under Item 1.03 of Form 8-K, any such notice and related
information to be provided promptly (but in no event later than one Business
Day) after the occurrence of such event.
The Master Servicer shall notify the Depositor and the Securities
Administrator of any of the events enumerated in Item 1.03 of Form 8-K with
respect to any of the Servicers at least two Business Days prior to the
effective date thereof and shall provide the Depositor and the Securities
Administrator with all information required by the Depositor to comply with its
reporting obligation under Item 1.03 of Form 8-K not later than the effective
date of any such event.
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IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Securities
Administrator and the Trustee have caused this Agreement to be duly executed by
their respective officers thereunto duly authorized to be hereunto affixed, all
as of the day and year first above written. BANC OF AMERICA FUNDING CORPORATION,
as Depositor
By: /s/ Xxxxx Xxxxx
----------------------------------------
Name: Xxxxx Xxxxx
Title: Senior
XXXXX FARGO BANK, N.A., as Master Servicer
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
XXXXX FARGO BANK, N.A., as Securities
Administrator
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
[Signature Page to the Pooling and Servicing Agreement]
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STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
)
On the 30th day of September, 2007, before me, a notary public in and for
the State of North Carolina, personally appeared Xxxxx Xxxxx, known to me who,
being by me duly sworn, did depose and say that he is a Senior Vice President of
Banc of America Funding Corporation, a Delaware corporation, one of the parties
that executed the foregoing instrument; and that he signed his name thereto by
order of the Board of Directors of such corporation.
/s/ E. Xxxxx Xxxxxx
--------------------------------
Notary Public
[Notarial Seal]
My commission expires October 4, 2010.
[Notary Page to the Pooling and Servicing Agreement]
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STATE OF MARYLAND )
) ss.:
COUNTY OF XXXX XXXXXXX )
)
On the 28th day of September, 2007, before me, a notary public in and for
the State of Maryland, personally appeared Xxxxxx Xxxxxx, known to me who, being
by me duly sworn, did depose and say that he is an Assistant Vice President of
Xxxxx Fargo Bank, N.A., a national banking association, one of the parties that
executed the foregoing instrument; and that he signed his name thereto by order
of the Board of Directors of such association.
/s/ Xxxxxxxx Xxxxxxxxxx
--------------------------------
Notary Public
[Notarial Seal]
My commission expires April 1, 2010.
[Notary Page to the Pooling and Servicing Agreement]
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STATE OF MARYLAND )
) ss.:
COUNTY OF XXXX XXXXXXX )
)
On the 28th day of September, 2007, before me, a notary public in and for
the State of Maryland, personally appeared Xxxxxx Xxxxxx, known to me who, being
by me duly sworn, did depose and say that he is an Assistant Vice President of
Xxxxx Fargo Bank, N.A., a national banking association, one of the parties that
executed the foregoing instrument; and that he signed his name thereto by order
of the Board of Directors of such association.
/s/ Xxxxxxxx Xxxxxxxxxx
------------------------------
Notary Public
[Notarial Seal]
My commission expires April 1, 2010.
[Notary Page to the Pooling and Servicing Agreement]
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STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
)
On the 30th day of September, 2007, before me, a notary public in and for
the State of Illinois, personally appeared Xxxxxxx X. Xxxxx, known to me who,
being by me duly sworn, did depose and say that she is a Vice President of U.S.
Bank National Association, a national banking association, one of the parties
that executed the foregoing instrument; and that she signed her name thereto by
order of the Board of Directors of such association.
/s/ Xxxxx Xxxxxxxx
-------------------------------
Notary Public
[Notarial Seal]
My commission expires November 6, 2010.
[Notary Page to the Pooling and Servicing Agreement]
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EXHIBIT A-1AR
[FORM OF FACE OF CLASS 1-A-R CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 1-A-R
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN MULTIPLE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE").
THIS CLASS 1-A-R CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PLAN
(AS DEFINED IN THE POOLING AND SERVICING AGREEMENT).
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN TAX RELATED TRANSFER
RESTRICTIONS DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT. ANY
ATTEMPTED OR PURPORTED TRANSFER OF THIS CLASS 1-A-R CERTIFICATE IN VIOLATION OF
SUCH RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN
THE PURPORTED TRANSFEREE.
A-1AR-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 1-A-R
evidencing a 100% Percentage Interest in the distributions allocable to the
Certificate of the above-referenced Class with respect to a Trust consisting
primarily of four loan groups of fixed interest rate mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Certificate
Balance of this
Certificate: $100.00
Initial Class Certificate
Balance of this Class: $100.00
Pass-Through Rate: 6.0000%
CUSIP No.: 05953L AA 7
ISIN No.: US05953LAA70
THIS CERTIFIES THAT __________ is the registered owner of 100% Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
A-1AR-2
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Any distribution of the proceeds of any remaining assets of the applicable
subaccounts of the Certificate Account will be made only upon presentment and
surrender of this Class 1-A-R Certificate at the Corporate Trust Office.
Each Person who has or who acquires this Class 1-A-R Certificate shall be
deemed by the acceptance or acquisition thereof to have agreed to be bound by
the following provisions and the rights of each Person acquiring this Class
1-A-R Certificate are expressly subject to the following provisions: (i) each
Person holding or acquiring this Class 1-A-R Certificate shall be a Permitted
Transferee and shall promptly notify the Securities Administrator of any change
or impending change in its status as a Permitted Transferee; (ii) no Person
shall acquire an ownership interest in this Class 1-A-R Certificate unless such
ownership interest is a pro rata undivided interest; (iii) in connection with
any proposed transfer of this Class 1-A-R Certificate, the Securities
Administrator shall require delivery to it, in form and substance satisfactory
to it, of an affidavit in the form of Exhibit I to the Pooling and Servicing
Agreement and a certificate substantially in the form set forth in Exhibit T to
the Pooling and Servicing Agreement; (iv) notwithstanding the delivery of an
affidavit by a proposed transferee under clause (iii) above, if a Responsible
Officer of the Securities Administrator has actual knowledge that the proposed
transferee is not a Permitted Transferee, no transfer of any Ownership Interest
in this Class 1-A-R Certificate to such proposed transferee shall be effected;
(v) this Class 1-A-R Certificate may not be purchased by or transferred to any
Person that is not a U.S. Person, unless (A) such Person holds this Class 1-A-R
Certificate in connection with the conduct of a trade or business within the
United States and furnishes the transferor and the Securities Administrator with
an effective Internal Revenue Service Form W-8ECI (or any successor thereto) or
(B) the transferee delivers to both the transferor and the Securities
Administrator an Opinion of Counsel from a nationally-recognized tax counsel to
the effect that such transfer is in accordance with the requirements of the Code
and the regulations promulgated thereunder and that such transfer of this Class
1-A-R Certificate will not be disregarded for federal income tax purposes; (vi)
any attempted or purported transfer of this Class 1-A-R Certificate in violation
of the provisions of such restrictions shall be absolutely null and void and
shall vest no rights in the purported transferee; and (vii) if any Person other
than a Permitted Transferee acquires the Class 1-A-R Certificate in violation of
such restrictions, then the Securities Administrator, based on information
provided to the Securities Administrator by the Master Servicer, will provide to
the Internal Revenue Service, and to the Persons specified in Section 860E(e)(3)
and (6) of the Code, information needed to compute the tax imposed under Section
860E(e) of the Code on transfers of residual interests to disqualified
organizations.
This Class 1-A-R Certificate may not be purchased by or transferred to any
Plan (as defined in the Pooling and Servicing Agreement).
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
A-1AR-3
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-1AR-4
EXHIBIT A-1A1
[FORM OF FACE OF CLASS 1-A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 1-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
X-0X0-0
XXXX XX XXXXXXX FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 1-A-1
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Certificate Balance
of this Certificate: $
Initial Class
Certificate Balance
of this Class: $23,176,000.00
Pass-Through Rate: 6.0000%
CUSIP No.: 05953L AB 5
ISIN No.: US05953LAB53
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by Banc
of America Funding Corporation (the "Depositor"). The Trust was created pursuant
to a Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
A-1A1-2
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-1A1-3
EXHIBIT A-1A2
[FORM OF FACE OF CLASS 1-A-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 1-A-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
X-0X0-0
XXXX XX XXXXXXX FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 1-A-2
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Certificate
Balance of this
Certificate: $
Initial Class
Certificate Balance
of this Class: $1,665,000.00
Pass-Through Rate: 6.0000%
CUSIP No.: 05953L AC 3
ISIN No.: US05953LAC37
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by Banc
of America Funding Corporation (the "Depositor"). The Trust was created pursuant
to a Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
A-1A2-2
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-1A2-3
EXHIBIT A-2A1
[FORM OF FACE OF CLASS 2-A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 2-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
X-0X0-0
XXXX XX XXXXXXX FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 2-A-1
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Certificate Balance
of this Certificate: $
Initial Class
Certificate Balance
of this Class: $195,249,000.00
Pass-Through Rate: 7.0000%
CUSIP No.: 05953L AD 1
ISIN No.: US05953LAD10
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by Banc
of America Funding Corporation (the "Depositor"). The Trust was created pursuant
to a Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
A-2A1-2
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-2A1-3
EXHIBIT A-2A2
[FORM OF FACE OF CLASS 2-A-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 2-A-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
X-0X0-0
XXXX XX XXXXXXX FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 2-A-2
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Certificate
Balance of this
Certificate: $
Initial Class
Certificate Balance
of this Class: $21,867,000.00
Pass-Through Rate: 7.0000%
CUSIP No.: 05953L AE 9
ISIN No.: US05953LAE92
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by Banc
of America Funding Corporation (the "Depositor"). The Trust was created pursuant
to a Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
A-2A2-2
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-2A2-3
EXHIBIT A-2A3
[FORM OF FACE OF CLASS 2-A-3 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 2-A-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
X-0X0-0
XXXX XX XXXXXXX FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 2-A-3
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Certificate Balance
of this Certificate: $
Initial Class
Certificate Balance
of this Class: $21,867,000.00
Pass-Through Rate: 7.0000%
CUSIP No.: 05953L AF 6
ISIN No.: US05953LAF67
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by Banc
of America Funding Corporation (the "Depositor"). The Trust was created pursuant
to a Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
A-2A3-2
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-2A3-3
EXHIBIT A-3A1
[FORM OF FACE OF CLASS 3-A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 3-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
X-0X0-0
XXXX XX XXXXXXX FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 3-A-1
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Certificate
Balance of this
Certificate: $
Initial Class Certificate
Balance of this Class: $27,484,000.00
Pass-Through Rate: 6.0000%
CUSIP No.: 05953L AG 4
ISIN No.: US05953LAG41
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
A-3A1-2
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-3A1-3
EXHIBIT A-3A2
[FORM OF FACE OF CLASS 3-A-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 3-A-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
X-0X0-0
XXXX XX XXXXXXX FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 3-A-2
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Certificate
Balance of this
Certificate: $
Initial Class Certificate
Balance of this Class: $1,974,000.00
Pass-Through Rate: 6.0000%
CUSIP No.: 05953L AH 2
ISIN No.: US05953LAH24
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
A-3A2-2
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-3A2-3
EXHIBIT A-4A1
[FORM OF FACE OF CLASS 4-A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 4-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
X-0X0-0
XXXX XX XXXXXXX FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 4-A-1
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Certificate Balance
of this Certificate: $
Initial Class
Certificate Balance
of this Class: $228,686,000.00
Pass-Through Rate: 6.0000%
CUSIP No.: 05953L AJ 8
ISIN No.: US05953LAJ89
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by Banc
of America Funding Corporation (the "Depositor"). The Trust was created pursuant
to a Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
A-4A1-2
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-4A1-3
EXHIBIT A-4A2
[FORM OF FACE OF CLASS 4-A-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 4-A-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
X-0X0-0
XXXX XX XXXXXXX FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 4-A-2
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Certificate
Balance of this
Certificate: $
Initial Class
Certificate Balance
of this Class: $5,765,000.00
Pass-Through Rate: 6.0000%
CUSIP No.: 05953L AK 5
ISIN No.: US05953LAK52
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by Banc
of America Funding Corporation (the "Depositor"). The Trust was created pursuant
to a Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
A-4A2-2
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-4A2-3
EXHIBIT A-4A3
[FORM OF FACE OF CLASS 4-A-3 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 4-A-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
X-0X0-0
XXXX XX XXXXXXX FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 4-A-3
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Certificate Balance
of this Certificate: $
Initial Class
Certificate Balance
of this Class: $5,766,000.00
Pass-Through Rate: 6.0000%
CUSIP No.: 05953L AL 3
ISIN No.: US05953LAL36
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by Banc
of America Funding Corporation (the "Depositor"). The Trust was created pursuant
to a Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
A-4A3-2
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-4A3-3
EXHIBIT A-X-IO
[FORM OF FACE OF CLASS X-IO CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class X-IO
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, EACH COMPONENT OF THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THE AMOUNT
SET FORTH BELOW.
A-XIO-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class X-IO
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Notional
Amount of this
Certificate: $
Initial Notional
Amount of this Class: $18,311,854.00
CUSIP No.: 05953L AM 1
ISIN No.: US05953LAM19
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
This Class X-IO Certificate is not entitled to any distributions with
respect to principal.
For the purposes of determining distributions of interest, the Class X-IO
Certificates will be deemed to consist of two components which are not
severable: the Class 2-X-IO Component and the Class 3-X-IO Component (each, a
"Component").
This Certificate does not evidence an obligation of, or an interest in, and
is not guaranteed by the Depositor, the Master Servicer, the Securities
A-XIO-2
Administrator or the Trustee or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-XIO-3
EXHIBIT A-X-PO
[FORM OF FACE OF CLASS X-PO CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class X-PO
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, EACH COMPONENT OF THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
A-XPO-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class X-PO
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Certificate
Balance of this
Certificate: $
Initial Class Certificate
Balance of this Class: $4,659,336.00
CUSIP No.: 05953L AN 9
ISIN No.: US05953LAN91
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
This Class X-PO Certificate is not entitled to any distributions with
respect to interest.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein.
A-XPO-2
For the purposes of determining distributions in reduction of Class
Certificate Balance, the Class X-PO Certificates will be deemed to consist of
three components which are not severable: the Class 1-X-PO Component, the Class
2-X-PO Component and the Class 3-X-PO Component (each, a "Component").
This Certificate does not evidence an obligation of, or an interest in, and
is not guaranteed by the Depositor, the Master Servicer, the Securities
Administrator or the Trustee or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-XPO-3
EXHIBIT A-4-IO
[FORM OF FACE OF CLASS 4-IO CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 4-IO
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THE AMOUNT
SET FORTH BELOW.
A-4IO-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 4-IO
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Notional
Amount of this
Certificate: $
Initial Notional
Amount of this Class: $8,844,056.00
CUSIP No.: 05953L AP 4
ISIN No.: US05953LAP40
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
This Class 4-IO Certificate is not entitled to any distributions with
respect to principal.
This Certificate does not evidence an obligation of, or an interest in, and
is not guaranteed by the Depositor, the Master Servicer, the Securities
Administrator or the Trustee or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
A-4IO-2
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
X-0XX-0
XXXXXXX X-0XX
[FORM OF FACE OF CLASS 4-PO CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 4-PO
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
A4PO-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 4-PO
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Certificate
Balance of this
Certificate: $
Initial Class Certificate
Balance of this Class: $2,089,440.00
CUSIP No.: 05953L AQ 2
ISIN No.: US05953LAQ23
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
This Class 4-PO Certificate is not entitled to any distributions with
respect to interest.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein.
A-4PO-2
This Certificate does not evidence an obligation of, or an interest in, and
is not guaranteed by the Depositor, the Master Servicer, the Securities
Administrator or the Trustee or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
X-0XX-0
XXXXXXX X-XX0
[FORM OF FACE OF CLASS X-B-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class X-B-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED BBB- OR ITS EQUIVALENT, NO
TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING
AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING
AND SERVICING AGREEMENT REFERENCED HEREIN.
B-XB1-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class X-B-1
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Certificate
Balance of this
Certificate: $
Initial Class Certificate
Balance of this Class: $10,220,000.00
Pass-Through Rate: Variable
CUSIP No.: 05953L AR 0
ISIN No.: US05953LAR06
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer and the
B-XB1-2
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-XB1-3
EXHIBIT B-XB2
[FORM OF FACE OF CLASS X-B-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class X-B-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED BBB- OR ITS EQUIVALENT, NO
TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING
AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING
AND SERVICING AGREEMENT REFERENCED HEREIN.
B-XB2-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class X-B-2
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Certificate
Balance of this
Certificate: $
Initial Class Certificate
Balance of this Class: $2,874,000.00
Pass-Through Rate: Variable
CUSIP No.: 05953L AS 8
ISIN No.: US05953LAS88
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer and the
B-XB2-2
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-XB2-3
EXHIBIT B-XB3
[FORM OF FACE OF CLASS X-B-3 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class X-B-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED BBB- OR ITS EQUIVALENT, NO
TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING
AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING
AND SERVICING AGREEMENT REFERENCED HEREIN.
B-XB3-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class X-B-3
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Certificate
Balance of this
Certificate: $
Initial Class Certificate
Balance of this Class: $1,597,000.00
Pass-Through Rate: Variable
CUSIP No.: 05953L AT 6
ISIN No.: US05953LAT61
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer and the
B-XB3-2
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-XB3-3
EXHIBIT B-XB4
[FORM OF FACE OF CLASS X-B-4 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class X-B-4
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE
POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-XB4-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class X-B-4
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Certificate
Balance of this
Certificate: $
Initial Class Certificate
Balance of this Class: $3,193,000.00
Pass-Through Rate: Variable
CUSIP No.: 05953L AX 7
ISIN No.: US05953LAX73
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
B-XB4-2
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Securities
Administrator or the Depositor; provided that the foregoing requirements under
clauses (i) and (ii) shall not apply to a transfer of a Private Certificate
between or among the Depositor, the Sponsor, their affiliates or both. The
Holder of a Private Certificate desiring to effect such transfer shall, and does
hereby agree to, indemnify the Securities Administrator and the Depositor
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-XB4-3
EXHIBIT B-XB5
[FORM OF FACE OF CLASS X-B-5 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class X-B-5
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE
POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-XB5-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class X-B-5
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Certificate
Balance of this
Certificate: $
Initial Class Certificate
Balance of this Class: $1,278,000.00
Pass-Through Rate: Variable
CUSIP No.: 05953L AY 5
ISIN No.: US05953LAY56
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
B-XB5-2
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Securities
Administrator or the Depositor; provided that the foregoing requirements under
clauses (i) and (ii) shall not apply to a transfer of a Private Certificate
between or among the Depositor, the Sponsor, their affiliates or both. The
Holder of a Private Certificate desiring to effect such transfer shall, and does
hereby agree to, indemnify the Securities Administrator and the Depositor
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-XB5-3
EXHIBIT B-XB6
[FORM OF FACE OF CLASS X-B-6 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class X-B-6
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE
POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-XB6-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class X-B-6
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Certificate
Balance of this
Certificate: $
Initial Class Certificate
Balance of this Class: $2,235,456.00
Pass-Through Rate: Variable
CUSIP No.: 05953L AZ 2
ISIN No.: US05953LAZ22
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
B-XB6-2
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Securities
Administrator or the Depositor; provided that the foregoing requirements under
clauses (i) and (ii) shall not apply to a transfer of a Private Certificate
between or among the Depositor, the Sponsor, their affiliates or both. The
Holder of a Private Certificate desiring to effect such transfer shall, and does
hereby agree to, indemnify the Securities Administrator and the Depositor
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-XB6-3
EXHIBIT B-4B1
[FORM OF FACE OF CLASS 4-B-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 4-B-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS
EQUIVALENT, NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING
AND SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-4B1-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 4-B-1
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Certificate
Balance of this
Certificate: $
Initial Class Certificate
Balance of this Class: $6,872,000.00
Pass-Through Rate: 6.0000%
CUSIP No.: 05953L AU 3
ISIN No.: US05953LAU35
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer and the
B-4B1-2
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-4B1-3
EXHIBIT B-4B2
[FORM OF FACE OF CLASS 4-B-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 4-B-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS
EQUIVALENT, NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING
AND SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-4B2-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 4-B-2
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Certificate
Balance of this
Certificate: $
Initial Class Certificate
Balance of this Class: $1,782,000.00
Pass-Through Rate: 6.0000%
CUSIP No.: 05953L AV 1
ISIN No.: US05953LAV18
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer and the
B-4B2-2
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-4B2-3
EXHIBIT B-4B3
[FORM OF FACE OF CLASS 4-B-3 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 4-B-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS
EQUIVALENT, NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING
AND SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-4B3-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 4-B-3
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Certificate
Balance of this
Certificate: $
Initial Class Certificate
Balance of this Class: $1,018,000.00
Pass-Through Rate: 6.0000%
CUSIP No.: 05953L AW 9
ISIN No.: US05953LAW90
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer and the
B-4B3-2
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-4B3-3
EXHIBIT B-4B4
[FORM OF FACE OF CLASS 4-B-4 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 4-B-4
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE
POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-4B4-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 4-B-4
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Certificate
Balance of this
Certificate: $
Initial Class Certificate
Balance of this Class: $1,145,000.00
Pass-Through Rate: 6.0000%
CUSIP No.: 05953L BA 6
ISIN No.: US05953LBA61
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
B-4B4-2
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Securities
Administrator or the Depositor; provided that the foregoing requirements under
clauses (i) and (ii) shall not apply to a transfer of a Private Certificate
between or among the Depositor, the Sponsor, their affiliates or both. The
Holder of a Private Certificate desiring to effect such transfer shall, and does
hereby agree to, indemnify the Securities Administrator and the Depositor
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-4B4-3
EXHIBIT B-4B5
[FORM OF FACE OF CLASS 4-B-5 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 4-B-5
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE
POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-4B5-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 4-B-5
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Certificate
Balance of this
Certificate: $
Initial Class Certificate
Balance of this Class: $891,000.00
Pass-Through Rate: 6.0000%
CUSIP No.: 05953L BB 4
ISIN No.: US05953LBB45
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
B-4B5-2
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Securities
Administrator or the Depositor; provided that the foregoing requirements under
clauses (i) and (ii) shall not apply to a transfer of a Private Certificate
between or among the Depositor, the Sponsor, their affiliates or both. The
Holder of a Private Certificate desiring to effect such transfer shall, and does
hereby agree to, indemnify the Securities Administrator and the Depositor
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-4B5-3
EXHIBIT B-4B6
[FORM OF FACE OF CLASS 4-B-6 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 4-B-6
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE
POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-4B6-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-8
Class 4-B-6
evidencing an interest in a Trust consisting primarily of four loan groups of
fixed interest rate mortgage loans (the "Mortgage Loans") secured by first liens
on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: September 1, 2007
First Distribution Date: October 25, 2007
Initial Certificate
Balance of this
Certificate: $
Initial Class Certificate
Balance of this Class: $509,657.00
Pass-Through Rate: 6.0000%
CUSIP No.: 05953L BC 2
ISIN No.: US05953LBC28
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated September 27, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
B-4B6-2
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Securities
Administrator or the Depositor; provided that the foregoing requirements under
clauses (i) and (ii) shall not apply to a transfer of a Private Certificate
between or among the Depositor, the Sponsor, their affiliates or both. The
Holder of a Private Certificate desiring to effect such transfer shall, and does
hereby agree to, indemnify the Securities Administrator and the Depositor
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-4B6-3
EXHIBIT C
[FORM OF REVERSE OF ALL CERTIFICATES]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as Banc of America Funding Corporation Mortgage Pass-Through
Certificates, of the Series specified on the face hereof (collectively, the
"Certificates"), and representing a beneficial ownership interest in the Trust
created by the Pooling and Servicing Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the Pooling
and Servicing Agreement or, except as expressly provided in the Pooling and
Servicing Agreement, subject to any liability under the Pooling and Servicing
Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to the Pooling and Servicing Agreement for the
interests, rights and limitations of rights, benefits, obligations and duties
evidenced thereby, and the rights, duties and immunities of the Securities
Administrator.
Pursuant to the terms of the Pooling and Servicing Agreement, a
distribution will be made on the 25th day of each calendar month (or, if such
day is not a Business Day, the next Business Day) (each, a "Distribution Date"),
commencing on the first Distribution Date specified on the face hereof, to the
Person in whose name this Certificate is registered at the close of business on
the applicable Record Date in an amount required pursuant to the Pooling and
Servicing Agreement.
On each Distribution Date, the Securities Administrator shall distribute
out of the Certificate Account to each Certificateholder of record on the
related Record Date (other than respecting the final distribution) (a) by check
mailed to such Certificateholder entitled to receive a distribution on such
Distribution Date at the address appearing in the Certificate Register, or (b)
upon written request by the Holder of a Certificate (other than a Residual
Certificate), by wire transfer or by such other means of payment as such
Certificateholder and the Securities Administrator shall agree upon, such
Certificateholder's Percentage Interest in the amount to which the related Class
of Certificates is entitled in accordance with the priorities set forth in
Article V of the Pooling and Servicing Agreement. The final distribution on each
Certificate will be made in like manner, but only upon presentation and
surrender of such Certificate to the Securities Administrator as contemplated by
Section 10.01 of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Securities Administrator and the rights of the
Certificateholders under the Pooling and Servicing Agreement at any time by the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
C-1
with the consent of the Holders of Certificates affected by such amendment
evidencing the requisite Percentage Interest, as provided in the Pooling and
Servicing Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Pooling and Servicing Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register of the Securities Administrator upon surrender of
this Certificate for registration of transfer at the Corporate Trust Office of
the Securities Administrator accompanied by a written instrument of transfer in
form satisfactory to the Securities Administrator and the Certificate Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Pooling and Servicing Agreement.
The Depositor, the Master Servicer, the Certificate Registrar, the
Securities Administrator and the Trustee and any agent of the Depositor, the
Master Servicer, the Certificate Registrar, the Securities Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Certificate Registrar, the Trustee, the Securities Administrator or any such
agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 1% of the aggregate unpaid principal balance of
the Mortgage Loans as of the Cut-off Date, the Master Servicer has the option to
purchase the Mortgage Loans and related REO Properties under the conditions set
forth in Section 10.01 of the Pooling and Servicing Agreement. In the event that
no such terminations occur, the obligations and responsibilities created by the
Pooling and Servicing Agreement will terminate upon the later of the maturity or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan remaining in the Trust or the disposition of all property in respect
thereof and the distribution to Certificateholders of all amounts required to be
distributed pursuant to the Pooling and Servicing Agreement. In no event shall
the Trust created by the Pooling and Servicing Agreement continue beyond the
expiration of 21 years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late ambassador of the United States to the Court of St.
Xxxxx, living on the date thereof.
Any term used herein that is defined in the Pooling and Servicing Agreement
shall have the meaning assigned in the Pooling and Servicing Agreement, and
nothing herein shall be deemed inconsistent with that meaning.
C-2
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By
----------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the Pooling and Servicing
Agreement referenced herein.
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By
----------------------------
Authorized Signatory
C-3
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
__________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________ for the
account of ___________________, account number _________________________, or, if
mailed by check, to _____________________. Applicable statements should be
mailed to __________________.
This information is provided by _________________________, the assignee
named above, or, as its agent.
X-0
XXXXXXX X-0
LOAN GROUP 1 MORTGAGE LOAN SCHEDULE
D-1-1
EXHIBIT D-2
LOAN GROUP 2 MORTGAGE LOAN SCHEDULE
D-2-1
EXHIBIT D-3
LOAN GROUP 3 MORTGAGE LOAN SCHEDULE
D-3-1
EXHIBIT D-4
LOAN GROUP 4 MORTGAGE LOAN SCHEDULE
D-4-1
EXHIBIT E
REQUEST FOR RELEASE OF DOCUMENTS
[Date]
To: U.S. Bank National Association
0000 Xxxxxxxxxxxx Xx., Xxxxx X
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Re: The Pooling and Servicing Agreement, dated September 27, 2007, among Banc
of America Funding Corporation, as Depositor, Xxxxx Fargo Bank, N.A., as
Securities Administrator and Master Servicer, and U.S. Bank National
Association, as Trustee.
In connection with the administration of the Mortgage Loans held by you, as
Custodian, pursuant to the above-captioned Pooling and Servicing Agreement, we
request the release, and hereby acknowledge receipt, of the Mortgage File for
the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
---------------------
Mortgagor Name, Address & Zip Code:
-----------------------------------
Reason for Requesting Documents (check one)
-------------------------------------------
____ 1. Mortgage Paid in Full
____ 2. Foreclosure
____ 3. Substitution
____ 4. Other Liquidation
____ 5. Nonliquidation Reason: ___________________
By:
____________________________________
(authorized signer of Servicer)
Issuer:________________________________
Address:_______________________________
_______________________________________
Date:__________________________________
E-1
Custodian
---------
U.S. Bank National Association
Please acknowledge the execution of the above request by your signature and date
below:
---------------------------------- ---------------
Signature Date
Documents returned to Custodian:
----------------------------------- ----------------
Custodian Date
E-2
EXHIBIT F
FORM OF CERTIFICATION OF ESTABLISHMENT OF ACCOUNT
September 27, 2007
[_______________] hereby certifies that it has established a [__________]
Account pursuant to Section [________] of the Pooling and Servicing Agreement,
dated September 27, 2007, among Banc of America Funding Corporation, as
Depositor, Xxxxx Fargo Bank, N.A., as Securities Administrator and Master
Servicer, and U.S. Bank National Association, as Trustee.
[________________],
By:_________________________________
Name:_______________________________
Title:______________________________
F-1
EXHIBIT G-1
FORM OF TRANSFEROR'S CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services - BAFC 2007-8
Re: Banc of America Funding Corporation, Mortgage Pass-Through Certificates,
Series 2007-8, Class ___, having an initial aggregate Certificate Balance
as of September 27, 2007 of $___________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[______________] (the "Transferor") to [______________] (the "Transferee") of
the captioned Certificates (the "Transferred Certificates"), pursuant to Section
6.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated September 27, 2007, among Banc of America Funding
Corporation, as Depositor, Xxxxx Fargo Bank, N.A., as Securities Administrator
and Master Servicer, and U.S. Bank National Association, as Trustee. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Securities
Administrator, that:
1. The Transferor is the lawful owner of the Transferred Certificates
with the full right to transfer such Certificates free from any and all
claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any offer
to buy or accept a transfer, pledge or other disposition of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security with any person in
any manner, (d) made any general solicitation with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security by means of general advertising or in any other
manner, or (e) taken any other action with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security, which (in the case of any of the acts described in clauses (a)
through (e) hereof) would constitute a distribution of the Transferred
Certificates under the Securities Act of 1933, as amended (the "1933 Act"),
would render the disposition of the Transferred Certificates a violation of
G-1-1
Section 5 of the 1933 Act or any state securities laws, or would require
registration or qualification of the Transferred Certificates pursuant to
the 1933 Act or any state securities laws.
Very truly yours,
_____________________________________
(Transferor)
By:__________________________________
Name:________________________________
Title:_______________________________
G-1-2
EXHIBIT G-2A
FORM 1 OF TRANSFEREE'S CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services - BAFC 2007-8
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2007-8, Class ___, having an initial aggregate
Certificate Balance as of September 27, 2007 of $_________]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[_______________] (the "Transferor") to [_________________________________] (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 6.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated September 27, 2007, among Banc of America
Funding Corporation, as Depositor, Xxxxx Fargo Bank, N.A., as Securities
Administrator and Master Servicer, and U.S. Bank National Association, as
Trustee. All capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Securities
Administrator, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "1933 Act"), and has
completed one of the forms of certification to that effect attached hereto
as Annex 1 and Annex 2. The Transferee is aware that the sale to it is
being made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of another
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a Qualified Institutional Buyer that purchases
for its own account or for the account of another Qualified Institutional
Buyer to whom notice is given that the resale, pledge or transfer is being
made in reliance on Rule 144A, or (b) pursuant to another exemption from
registration under the 1933 Act.
2. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the nature, performance and servicing of
the Mortgage Loans, (d) the Pooling and Servicing Agreement and the
Trust created pursuant thereto, (e) any credit enhancement mechanism
G-2A-1
associated with the Transferred Certificate, and (f) all related
matters, that it has requested.
3. If the Transferee proposes that the Transferred Certificates
be registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgment below.
Very truly yours,
__________________________________
(Transferor)
By:_______________________________
Name:_____________________________
Title:____________________________
G-2A-2
Nominee Acknowledgment
----------------------
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
__________________________________
(Nominee)
By:________________________________
Name:______________________________
Title:_____________________________
G-2A-3
ANNEX 1 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [__________________] (the
"Transferor") Xxxxx Fargo Bank, N.A., as Securities Administrator with respect
to the mortgage pass-through certificates (the "Transferred Certificates")
described in the Transferee certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended,
because (i) the Transferee owned and/or invested on a discretionary basis
$______________________((1)) in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
state or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in
the case of a U.S. bank, and not more than 18 months preceding
such date of sale in the case of a foreign bank or equivalent
institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a state or federal authority having
supervision over any such institutions, or is a foreign
________________________
(1) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
G-2A-4
savings and loan association or equivalent institute and (b)
has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a copy
of which is attached hereto, as of a date not more than 16
months preceding the date of sale of the Transferred
Certificates in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date
of sale in the case of a foreign savings and loan association
or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as
amended.
___ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
state, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any
agency or instrumentality of the state or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
___ Investment Advisor. The Transferee is an investment advisor
Registered under the Investment Advisers Act of 1940.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee, (ii) securities that are part
of an unsold allotment to or subscription by the Transferee, if the Transferee
is a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee did not
include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
G-2A-5
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee may be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
___________________________________________
Print Name of Transferee
By:________________________________________
Name:______________________________________
Title:_____________________________________
Date:______________________________________
G-2A-6
ANNEX 2 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [_________________] (the
"Transferor") Xxxxx Fargo Bank, N.A., as Securities Administrator, with respect
to the mortgage pass-through certificates (the "Transferred Certificates")
described in the Transferee certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A ("Rule 144A") under the Securities Act of 1933, as amended, because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, and (ii) as marked below, the Transferee alone
owned and/or invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Transferee or the Transferee's Family of Investment Companies, the cost
of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis
$__________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance
with Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $__________________ in securities
(other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
G-2A-7
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
___________________________________________
Print Name of Transferee or Adviser
By:________________________________________
Name:______________________________________
Title:_____________________________________
IF AN ADVISER:
___________________________________________
Print Name of Transferee
By:________________________________________
Date:______________________________________
G-2A-8
EXHIBIT G-2B
FORM 2 OF TRANSFEREE'S CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services - BAFC 2007-8
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2007-8, Class ___, having an initial aggregate
Certificate Balance as of September 27, 2007 of $_________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[_______________________] (the "Transferor") to
[_________________________________] (the "Transferee") of the captioned
Certificates (the "Transferred Certificates"), pursuant to Section 6.02 of the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
September 27, 2007, among Banc of America Funding Corporation, as Depositor,
Xxxxx Fargo Bank, N.A., as Securities Administrator and Master Servicer, and
U.S. Bank National Association, as Trustee. All capitalized terms used herein
and not otherwise defined shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Securities Administrator, that:
1. Transferee is acquiring the Transferred Certificates for its own account
for investment and not with a view to or for sale or transfer in connection with
any distribution thereof, in whole or in part, in any manner which would violate
the Securities Act of 1933, as amended (the "1933 Act"), or any applicable state
securities laws.
2. Transferee understands that (a) the Transferred Certificates have not
been and will not be registered under the 1933 Act or registered or qualified
under any applicable state securities laws, (b) neither the Depositor nor the
Securities Administrator is obligated to register or qualify the Transferred
Certificates and (c) neither the Transferred Certificates nor any security
issued in exchange therefor or in lieu thereof may be resold or transferred
unless such resale or transfer is exempt from the registration requirements of
the 1933 Act and any applicable state securities laws or is made in accordance
with the 1933 Act and laws, in which case (i) unless the transfer is made in
reliance on Rule 144A under the 1933 Act, the Securities Administrator or the
Depositor may require a written Opinion of Counsel (which may be in-house
counsel) acceptable to and in form and substance reasonably satisfactory to the
Securities Administrator and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act and such laws or is being made pursuant to the 1933
Act and such laws, which Opinion of Counsel shall not be an expense of the
Securities Administrator or the Depositor and (ii) the Securities Administrator
G-2B-1
shall require a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached to the Pooling and Servicing
Agreement as Exhibit G-1 and a certificate from such Certificateholder's
prospective transferee substantially in the form attached to the Pooling and
Servicing Agreement either as Exhibit G-2A or as Exhibit G-2B, which
certificates shall not be an expense of the Securities Administrator or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both.
3. The Transferee understands that it may not sell or otherwise transfer
the Transferred Certificates, any security issued in exchange therefor or in
lieu thereof or any interest in the foregoing except in compliance with the
provisions of Section 6.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A
TRANSACTION EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND
IN ACCORDANCE WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT
REFERENCED HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02
OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security with any person in any manner, (d) made any general solicitation by
means of general advertising or in any other manner, or (e) taken any other
action, that (in the case of any of the acts described in clauses (a) through
(d) above) would constitute a distribution of the Transferred Certificates under
the 1933 Act, would render the disposition of the Transferred Certificates a
violation of Section 5 of the 1933 Act or any state securities law or would
require registration or qualification of the Transferred Certificates pursuant
thereto. The Transferee will not act, nor has it authorized nor will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to the Transferred Certificates, any interest in the Transferred
Certificates or any other similar security.
5. The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Transferred Certificates and distributions thereon, (c)
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust created pursuant thereto, (e) any credit
G-2B-2
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501 (a) under the 1933 Act or an entity
in which all the equity owners come within such paragraphs and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Transferred
Certificates; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
___________________________________________
(Transferee)
By:________________________________________
Name:______________________________________
Title:_____________________________________
Date:______________________________________
G-2B-3
Nominee Acknowledgment
----------------------
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
___________________________________________
(Nominee)
By:________________________________________
Name:______________________________________
Title:_____________________________________
G-2B-4
EXHIBIT H
FORM OF TRANSFEREE REPRESENTATION LETTER
FOR ERISA RESTRICTED CERTIFICATES
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services - BAFC 2007-8
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2007-8, Class ___, having an initial aggregate
Certificate Balance as of September 27, 2007 of $_________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[_______________________] (the "Transferor") to [___________________________]
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 6.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated September 27, 2007, among Banc of
America Funding Corporation, as Depositor, Xxxxx Fargo Bank, N.A., as Securities
Administrator and Master Servicer, and U.S. Bank National Association, as
Trustee. All capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to you, as
Securities Administrator, either that:
(a) it is not an employee benefit plan or arrangement, subject to Title I
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"), or a
Person acting on behalf of or using the assets of any such employee benefit plan
or arrangement (collectively, a "Plan") to effect the purchase of the
Transferred Certificates; or
(b) with respect to any ERISA Restricted Certificate other than a Class
1-A-R Certificate, it is an insurance company using funds from an "insurance
company general account" (as defined in Section V(e) of Prohibited Transaction
Class Exemption 95-60 ("PTCE 95-60"), 60 Fed. Reg. 35925 (July 12, 1995)), to
purchase the Transferred Certificates and the purchase and holding of the
Transferred Certificates are covered by Section I and Section III of PTCE 95-60.
H-1
Capitalized terms used in and not otherwise defined herein shall have the
meaning assigned to them in the Pooling and Servicing Agreement.
Very truly yours,
___________________________________________
(Transferee)
By:________________________________________
Name:______________________________________
Title:_____________________________________
Date:______________________________________
H-2
EXHIBIT I
FORM OF AFFIDAVIT REGARDING TRANSFER OF
RESIDUAL CERTIFICATE
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2007-8
STATE OF )
) ss:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of _______________________________, the
proposed transferee (the "Transferee") of the Class 1-A-R Certificate (the
"Residual Certificate") issued pursuant to the Pooling and Servicing Agreement,
dated September 27, 2007, among Banc of America Funding Corporation, as
Depositor, Xxxxx Fargo Bank, N.A., as Securities Administrator and Master
Servicer, and U.S. Bank National Association, as Trustee. Capitalized terms used
but not defined herein shall have the meanings ascribed to such terms in the
Agreement. The Transferee has authorized the undersigned to make this affidavit
on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the date of
the transfer, a Permitted Transferee. The Transferee is acquiring the Residual
Certificate either (i) for its own account or (ii) as nominee, trustee or agent
for another Person who is a Permitted Transferee and has attached hereto an
affidavit from such Person in substantially the same form as this affidavit. The
Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax will
be imposed on transfers of the Residual Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will be
imposed on a "pass-through entity" holding the Certificate if at any time during
the taxable year of the pass-through entity a Person that is not a Permitted
Transferee is the record Holder of an interest in such entity. The Transferee
understands that, other than in the case of an "electing large partnership"
under Section 775 of the Code, such tax will not be imposed for any period with
respect to which the record Holder furnishes to the pass-through entity an
affidavit that such record Holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
I-1
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 6.02 of the
Agreement and understands the legal consequences of the acquisition of the
Residual Certificate including, without limitation, the restrictions on
subsequent transfers and the provisions regarding voiding the transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 6.02 of the Agreement and the restrictions noted on
the face of the Certificate. The Transferee understands and agrees that any
breach of any of the representations included herein shall render the transfer
to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a transfer affidavit in the form of
this Affidavit from any Person to whom the Transferee attempts to transfer the
Residual Certificate, and in connection with any transfer by a Person for whom
the Transferee is acting as nominee, trustee or agent, and the Transferee will
not transfer the Residual Certificate or cause the Residual Certificate to be
transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such transfer by the Transferee, the
Transferee agrees to deliver to the Securities Administrator a certificate
substantially in the form set forth in Exhibit T to this Agreement (a
"Transferor Certificate") to the effect that such Transferee has no actual
knowledge that the Person to which the transfer is to be made is not a Permitted
Transferee and no reason to believe that the statements in such Person's
transfer affidavit are false.
7. The Transferee historically has paid its debts as they have become due,
and it intends to do so in the future.
8. The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the Residual
Certificate.
9. The taxpayer identification number of the Transferee (or the
Transferee's nominee, if applicable) is ___________.
10. The Transferee is a (i) U.S. Person as defined in Code Section
7701(a)(30) or (ii) (A) the Transferee holds the Residual Certificate in
connection with the conduct of a trade or business within the United States and
has furnished the transferor and the Securities Administrator with an effective
Internal Revenue Service Form W-8ECI (or successor thereto) or (B) the
Transferee has delivered to both the transferor and the Securities Administrator
an Opinion of Counsel from a nationally-recognized tax counsel to the effect
that such transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of the Residual
Certificate will not be disregarded for federal income tax purposes.
11. The Transferee is aware that the Residual Certificate may be a
"noneconomic residual interest" within the meaning of Treasury Regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
I-2
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
12. The Transferee will not cause income from the Residual Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other U.S.
Person.
13. If the Transferee is purchasing the Residual Certificate in a transfer
intended to meet the safe harbor provisions of Treasury Regulations Sections
1.860E-1(c), the Transferee has executed and attached Attachment A hereto.
14. The Transferee is not an employee benefit plan or arrangement, subject
to Title I of ERISA, or Section 4975 of the Code and the Transferee is not
acting on behalf of, or using assets of, such an employee benefit plan or
arrangement.
15. The Transferee understands that it may incur tax liabilities with
respect to the Residual Certificate in excess of cash flows generated thereby.
16. The Transferee intends to pay taxes associated with holding the
Residual Certificate as such taxes become due.
* * *
I-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer this _____ day of ________________, ____.
___________________________________________
Print Name of Transferee
By:________________________________________
Name:___________________________________
Title:__________________________________
Personally appeared before me the above-named
______________________________, known or proved to me to be the same person who
executed the foregoing instrument and to be the _______________________ of the
Transferee, and acknowledged that he executed the same as his free act and deed
and the free act and deed of the Transferee.
Subscribed and sworn before me this _____ day of _______________________,
____
_____________________________________
NOTARY PUBLIC
My Commission expires the ____ day of
______________, ____
I-4
ATTACHMENT A
to
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4) OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED, AND FOR NON-ERISA INVESTORS
Check the appropriate box:
[ ] The consideration paid to the Transferee to acquire the Residual
Certificate equals or exceeds the excess of (a) the present value of
the anticipated tax liabilities over (b) the present value of the
anticipated savings associated with holding such Residual Certificate,
in each case calculated in accordance with U.S. Treasury Regulations
Sections 1.860E-1(c)(7) and (8), computing present values using a
discount rate equal to the short-term Federal rate prescribed by
Section 1274(d) of the Code and the compounding period used by the
Transferee.
OR
[ ] The transfer of the Residual Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly:
(i) the Transferee is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which
income from Residual Certificate will only be taxed in the United
States;
(ii) at the time of the transfer, and at the close of the Transferee's
two fiscal years preceding the year of the transfer, the
Transferee had gross assets for financial reporting purposes
(excluding any obligation of a person related to the Transferee
within the meaning of U.S. Treasury Regulations Section
1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in
excess of $10 million;
(iii) the Transferee will transfer the Residual Certificate only to
another "eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that
satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii)
and (iii) and Section 1.860E-1(c)(5) of the U.S. Treasury
Regulations;
(iv) the Transferee has determined the consideration paid to it to
acquire the Residual Certificate based on reasonable market
assumptions (including, but not limited to, borrowing and
investment rates, prepayment and loss assumptions, expense and
reinvestment assumptions, tax rates and other factors specific to
the Transferee) that it has determined in good faith; and
I-5
(v) in the event of any transfer of the Residual Certificate by the
Transferee, the Transferee will require its transferee to
complete a representation in the form of this Attachment A as a
condition of such transferee's purchase of the Residual
Certificate.
I-6
EXHIBIT J
LIST OF RECORDATION STATES
None.
J-1
EXHIBIT K
FORM OF INITIAL CERTIFICATION
September 27, 0000
Xxxx xx Xxxxxxx Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services - BAFC 2007-8
Re: The Pooling and Servicing Agreement, dated September 27, 2007 (the
"Pooling and Servicing Agreement"), among the Depositor, Xxxxx Fargo
Bank, N.A., as securities administrator and as master servicer, and
U.S. Bank National Association, as trustee.
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement, the undersigned, as [Trustee] [Custodian],
hereby certifies that, except as specified in any list of exceptions attached
hereto, it has received the original Mortgage Note relating to each of the
Mortgage Loans listed on the Mortgage Loan Schedule.
The [Trustee] [Custodian] has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the Pooling and Servicing Agreement in connection with this Initial
Certification. The [Trustee] [Custodian] makes no representations as to: (i) the
validity, legality, sufficiency, enforceability, recordability or genuineness of
any of the documents contained in each Mortgage File or any of the Mortgage
Loans identified in the Mortgage Loan Schedule or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
K-1
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
[U.S. BANK NATIONAL ASSOCIATION,
as Trustee]
[___________________________,
as Custodian]
By:________________________________________
Name:______________________________________
Title:_____________________________________
K-2
EXHIBIT L
FORM OF FINAL CERTIFICATION
[__________ ____, ____]
Banc of America Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services - BAFC 2007-8
Re: The Pooling and Servicing Agreement, dated September 27, 2007 (the
"Pooling and Servicing Agreement"), among the Depositor, Xxxxx Fargo
Bank, N.A., as securities administrator and as master servicer, and
U.S. Bank National Association, as trustee.
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement, the undersigned, as [Trustee] [Custodian],
hereby certifies that, as to each Mortgage Loan listed in the Mortgage Loan
Schedule, except as may be specified in any list of exceptions attached hereto,
such Mortgage File contains all of the items required to be delivered pursuant
to Section 2.01(b) of the Pooling and Servicing Agreement.
The [Trustee] [Custodian] has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the Pooling and Servicing Agreement in connection with this Final
Certification. The [Trustee] [Custodian] makes no representations as to: (i) the
validity, legality, sufficiency, enforceability, recordability or genuineness of
any of the documents contained in each Mortgage File or any of the Mortgage
Loans identified in the Mortgage Loan Schedule or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
L-1
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
[U.S. BANK NATIONAL ASSOCIATION,
as Trustee]
[___________________________,
as Custodian]
By:________________________________________
Name:______________________________________
Title:_____________________________________
L-2
EXHIBIT M
Form of Xxxxxxxx-Xxxxx Certification
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2007-8
I, [________], a [_____________] of Xxxxx Fargo Bank, N.A. (the "Master
Servicer"), certify that:
1. I have reviewed this report on Form 10-K and all reports on Form 10-D
required to be filed in respect of the period covered by this report on
Form 10-K of the Banc of America Funding 2007-8 Trust (the "Exchange Act
Periodic Reports");
2. Based on my knowledge, the Exchange Act Periodic Reports, taken as a whole,
do not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with
respect to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided under Form 10-D for the period covered
by this report is included in the Exchange Act Periodic Reports;
4. I am responsible for reviewing the activities performed by the master
servicer and the servicers and based on my knowledge and the compliance
reviews conducted in preparing the master servicer and servicer compliance
statements required in this report under Item 1123 of Regulation AB, and
except as disclosed in the Exchange Act Periodic Reports, the master
servicer has fulfilled its obligations under the pooling and servicing
agreement and the servicers have fulfilled their obligations under the
servicing agreements in all material respects; and
5. All of the reports on assessment of compliance with the servicing criteria
for asset-backed securities and their related attestation reports on
assessment of compliance with servicing criteria for asset-backed
securities required to be included in this report in accordance with Item
1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been
included as an exhibit to this report, except as otherwise disclosed in
this report. Any material instances of noncompliance described in such
reports have been disclosed in this report on Form 10-K.
In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: [_______________________].
[_________], 20[__]
M-1
EXHIBIT N
Relevant Servicing Criteria
----------------------------------------------------------------------------------------------------------------------
Servicing Criteria Parties Responsible
----------------------------------------------------------------------------------------------------------------------
Reference Criteria
----------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
----------------------------------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any Master Servicer and
performance or other triggers and events of default in Securities Administrator
accordance with the transaction agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to third Master Servicer and
parties, policies and procedures are instituted to monitor Securities Administrator
the third party's performance and compliance with such
servicing activities.
----------------------------------------------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a Not applicable
back-up servicer for the mortgage loans are maintained.
----------------------------------------------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect Master Servicer
on the party participating in the servicing function
throughout the reporting period in the amount of coverage
required by and otherwise in accordance with the terms of
the transaction agreements.
----------------------------------------------------------------------------------------------------------------------
Cash Collection and Administration
----------------------------------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the Master Servicer and
appropriate custodial bank accounts and related bank clearing Securities Administrator
accounts no more than two business days following receipt,
or such other number of days specified in the transaction
agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor Master Servicer and
or to an investor are made only by authorized personnel. Securities Administrator
----------------------------------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash Master Servicer and
flows or distributions, and any interest or other fees charged Securities Administrator
for such advances, are made, reviewed and approved as
specified in the transaction agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve Master Servicer and
accounts or accounts established as a form of Securities Administrator
overcollateralization, are separately maintained (e.g., with
respect to commingling of cash) as set forth in the transaction
agreements.
----------------------------------------------------------------------------------------------------------------------
N-1
----------------------------------------------------------------------------------------------------------------------
Servicing Criteria Parties Responsible
----------------------------------------------------------------------------------------------------------------------
Reference Criteria
----------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
----------------------------------------------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally insured Master Servicer and
depository institution as set forth in the transaction Securities Administrator
agreements. For purposes of this criterion, "federally insured
depository institution" with respect to a foreign financial
institution means a foreign financial institution
that meets the requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
----------------------------------------------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent Master Servicer and
unauthorized access. Securities Administrator
----------------------------------------------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset- Master Servicer and
asset-backed securities related bank accounts, including Securities Administrator
custodial accounts and related bank clearing accounts. These
reconciliations are (A) mathematically accurate; (B) prepared
within 30 calendar days after the bank statement cutoff date,
or such other number of days specified in the transaction
agreements; (C) reviewed and approved by someone other than
the person who prepared the reconciliation; and (D)
contain explanations for reconciling items. These
reconciling items are resolved within 90 calendar days of
their original identification, or such other number of
days specified in the transaction agreements.
----------------------------------------------------------------------------------------------------------------------
Investor Remittances and Reporting
----------------------------------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the Master Servicer and
Commission, are maintained in accordance with the Securities Administrator
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set forth in the
transaction agreements; (B) provide information calculated in
accordance with the terms specified in the transaction
agreements; (C) are filed with the Commission as required by
its rules and regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal balance and
number of mortgage loans serviced by the Servicer.
----------------------------------------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in Master Servicer and
accordance with timeframes, distribution priority and other Securities Administrator
terms set forth in the transaction agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within two Master Servicer and
business days to the Servicer's investor records, or such other Securities Administrator
number of days specified in the transaction agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree Master Servicer and
with cancelled checks, or other form of payment, or custodial Securities Administrator
bank statements.
----------------------------------------------------------------------------------------------------------------------
N-2
----------------------------------------------------------------------------------------------------------------------
Servicing Criteria Parties Responsible
----------------------------------------------------------------------------------------------------------------------
Reference Criteria
----------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Pool Asset Administration
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as Custodian
required by the transaction agreements or related mortgage
loan documents.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as Custodian
required by the transaction agreements
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are
made, reviewed and approved in accordance with any
conditions or requirements in the transaction agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in
accordance with the related mortgage loan documents are
posted to the Servicer's obligor records maintained no more
than two business days after receipt, or such other number of
days specified in the transaction agreements, and allocated to
principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree
with the Servicer's records with respect to an obligor's
unpaid principal balance.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's
mortgage loans (e.g., loan modifications or re-agings) are
made, reviewed and approved by authorized personnel in
accordance with the transaction agreements and related pool
asset documents.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans,
modifications and deeds in lieu of foreclosure, foreclosures
and repossessions, as applicable) are initiated, conducted and
concluded in accordance with the timeframes or other
requirements established by the transaction agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained
during the period a mortgage loan is delinquent in
accordance with the transaction agreements. Such records
are maintained on at least a monthly basis, or such other
period specified in the transaction agreements, and describe
the entity's activities in monitoring delinquent mortgage
loans including, for example, phone calls, letters and
payment rescheduling plans in cases where delinquency is
deemed temporary (e.g., illness or unemployment).
----------------------------------------------------------------------------------------------------------------------
N-3
----------------------------------------------------------------------------------------------------------------------
Servicing Criteria Parties Responsible
----------------------------------------------------------------------------------------------------------------------
Reference Criteria
----------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage
loans with variable rates are computed based on the related
mortgage loan documents.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as
escrow accounts): (A) such funds are analyzed, in
accordance with the obligor's mortgage loan documents, on
at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage
loan documents and state laws; and (C) such funds are
returned to the obligor within 30 calendar days of full
repayment of the related mortgage loans, or such other
number of days specified in the transaction agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the appropriate
bills or notices for such payments, provided that such support
has been received by the servicer at least 30 calendar days
prior to these dates, or such other number of days specified in
the transaction agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any payment
to be made on behalf of an obligor are paid from the
servicer's funds and not charged to the obligor, unless the
late payment was due to the obligor's error or omission.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records maintained
by the servicer, or such other number of days specified in the
transaction agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are Master Servicer and
recognized and recorded in accordance with the transaction Securities Administrator
agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other support, identified in Master Servicer and
Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, Securities Administrator
is maintained as set forth in the transaction agreements.
----------------------------------------------------------------------------------------------------------------------
N-4
EXHIBIT O
Additional Form 10-D Disclosure
-------------------------------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-D DISCLOSURE
-------------------------------------------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
-------------------------------------------------------------------------------------------------------------------
Item 1: Distribution and Pool Master Servicer
Performance Information Securities Administrator
Depositor
Any information required by 1121 which is NOT
included on the Monthly Statement
-------------------------------------------------------------------------------------------------------------------
Item 2: Legal Proceedings
Any legal proceeding pending against the
following entities or their respective property,
that is material to Certificateholders, including
any proceedings known to be contemplated by
governmental authorities:
-------------------------------------------------------------------------------------------------------------------
o Issuing Entity (Trust Fund) Trustee, Master Servicer, Securities Administrator
and Depositor
-------------------------------------------------------------------------------------------------------------------
o Sponsor (Seller) Seller (if a party to the Pooling and Servicing
Agreement) or Depositor
-------------------------------------------------------------------------------------------------------------------
o Depositor Depositor
-------------------------------------------------------------------------------------------------------------------
o Trustee Trustee
-------------------------------------------------------------------------------------------------------------------
o Securities Administrator Securities Administrator
-------------------------------------------------------------------------------------------------------------------
o Master Servicer Master Servicer
-------------------------------------------------------------------------------------------------------------------
o Custodian Custodian
-------------------------------------------------------------------------------------------------------------------
o 1110(b) Originator Depositor
-------------------------------------------------------------------------------------------------------------------
o Any 1108(a)(2) Servicer (other than the Master Master Servicer
Servicer or Securities Administrator)
-------------------------------------------------------------------------------------------------------------------
o Any other party contemplated by 1100(d)(1) Depositor
-------------------------------------------------------------------------------------------------------------------
Item 3: Sale of Securities and Use of Proceeds Depositor
Information from Item 2(a) of Part II of Form 10-Q:
With respect to any sale of securities by the
sponsor, depositor or issuing entity, that are
backed by the same asset pool or are otherwise
issued by the issuing entity, whether or not
registered, provide the sales and use of proceeds
information in Item 701 of Regulation S-K.
Pricing information can be omitted if securities
were not registered.
-------------------------------------------------------------------------------------------------------------------
Item 4: Defaults Upon Senior Securities Securities Administrator
Information from Item 3 of Part II of Form 10-Q:
--------------------------------------------------------------------------------------------------------------------
O-1
-------------------------------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-D DISCLOSURE
-------------------------------------------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
-------------------------------------------------------------------------------------------------------------------
Report the occurrence of any Event of Default
(after expiration of any grace period and
provision of any required notice)
-------------------------------------------------------------------------------------------------------------------
Item 5: Submission of Matters to a Vote Securities Administrator
of Security Holders
Information from Item 4 of Part II of Form 10-Q
-------------------------------------------------------------------------------------------------------------------
Item 6: Significant Obligors of Pool Assets Depositor
Item 1112(b) - Significant Obligor Financial
Information*
-------------------------------------------------------------------------------------------------------------------
*This information need only be reported on the
Form 10-D for the distribution period in which
updated information is required pursuant to the
Item.
-------------------------------------------------------------------------------------------------------------------
Item 7: Significant Enhancement
Provider Information
Item 1114(b)(2) - Credit Enhancement Provider
Financial Information*
-------------------------------------------------------------------------------------------------------------------
o Determining applicable disclosure threshold Securities Administrator
-------------------------------------------------------------------------------------------------------------------
o Requesting required financial information or Securities Administrator
effecting incorporation by reference
--------------------------------------------------------------------------------------------------------------------
Item 1115(b) - Derivative Counterparty
Financial Information*
-------------------------------------------------------------------------------------------------------------------
o Determining current maximum probable eSPOsure Depositor
-------------------------------------------------------------------------------------------------------------------
o Determining current significance percentage Securities Administrator
-------------------------------------------------------------------------------------------------------------------
o Requesting required financial information or Securities Administrator
effecting incorporation by reference
-------------------------------------------------------------------------------------------------------------------
*This information need only be reported on the
Form 10-D for the distribution period in which
updated information is required pursuant to the
Items.
-------------------------------------------------------------------------------------------------------------------
Item 8: Other Information Any party responsible for the applicable
Form 8-K Disclosure item
Disclose any information required to be reported
on Form 8-K during the period covered by the
Form 10-D but not reported
-------------------------------------------------------------------------------------------------------------------
Item 9: Exhibits
-------------------------------------------------------------------------------------------------------------------
Monthly Statement to Certificateholders Securities Administrator
-------------------------------------------------------------------------------------------------------------------
Exhibits required by Item 601 of Regulation S-K, Depositor
such as material agreements
-------------------------------------------------------------------------------------------------------------------
O-2
EXHIBIT P
Additional Form 10-K Disclosure
-------------------------------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-K DISCLOSURE
-------------------------------------------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
-------------------------------------------------------------------------------------------------------------------
Item 9B: Other Information Any party responsible for disclosure items on
Disclose any information required to be reported Form 8-K
on Form 8-K during the fourth quarter covered
by the Form 10-K but not reported
-------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits, Financial Statement Schedules Securities Administrator
Depositor
-------------------------------------------------------------------------------------------------------------------
Reg AB Item 1112(b): Significant
Obligors of Pool Assets
-------------------------------------------------------------------------------------------------------------------
Significant Obligor Financial Information* Depositor
-------------------------------------------------------------------------------------------------------------------
*This information need only be reported on the
Form 10-D for the distribution period in which
updated information is required pursuant to the
Item.
-------------------------------------------------------------------------------------------------------------------
Reg AB Item 1114(b)(2): Credit
Enhancement Provider Financial
Information
-------------------------------------------------------------------------------------------------------------------
o Determining applicable disclosure threshold Securities Administrator
-------------------------------------------------------------------------------------------------------------------
o Requesting required financial information or Securities Administrator
effecting incorporation by reference
-------------------------------------------------------------------------------------------------------------------
*This information need only be reported on the
Form 10-D for the distribution period in which
updated information is required pursuant to the
Items.
-------------------------------------------------------------------------------------------------------------------
Reg AB Item 1115(b): Derivative
Counterparty Financial Information
-------------------------------------------------------------------------------------------------------------------
o Determining current maximum probable exposure Depositor
-------------------------------------------------------------------------------------------------------------------
o Determining current significance percentage Securities Administrator
-------------------------------------------------------------------------------------------------------------------
o Requesting required financial information or Securities Administrator
effecting incorporation by reference
-------------------------------------------------------------------------------------------------------------------
*This information need only be reported on the
Form 10-D for the distribution period in which
updated information is required pursuant to the
Items.
-------------------------------------------------------------------------------------------------------------------
Reg AB Item 1117: Legal Proceedings
Any legal proceeding pending against the
following entities or their respective property,
that is material to Certificateholders, including
any proceedings known to be contemplated by
governmental authorities:
-------------------------------------------------------------------------------------------------------------------
o Issuing Entity (Trust Fund) Trustee, Master Servicer, Securities Administrator
and Depositor
-------------------------------------------------------------------------------------------------------------------
P-1
-------------------------------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-K DISCLOSURE
-------------------------------------------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
-------------------------------------------------------------------------------------------------------------------
o Sponsor (Seller) Seller (if a party to the Pooling and Servicing
Agreement) or Depositor
-------------------------------------------------------------------------------------------------------------------
o Depositor Depositor
-------------------------------------------------------------------------------------------------------------------
o Trustee Trustee
-------------------------------------------------------------------------------------------------------------------
o Securities Administrator Securities Administrator
-------------------------------------------------------------------------------------------------------------------
o Master Servicer Master Servicer
-------------------------------------------------------------------------------------------------------------------
o Custodian Custodian
-------------------------------------------------------------------------------------------------------------------
o 1110(b) Originator Depositor
-------------------------------------------------------------------------------------------------------------------
o Any 1108(a)(2) Servicer (other than the Master Master Servicer
Servicer or Securities Administrator)
-------------------------------------------------------------------------------------------------------------------
o Any other party contemplated by 1100(d)(1) Depositor
-------------------------------------------------------------------------------------------------------------------
Reg AB Item 1119: Affiliations and Relationships
-------------------------------------------------------------------------------------------------------------------
Whether (a) the Sponsor (Seller), Depositor or Depositor as to (a)
Issuing Entity is an affiliate of the following Sponsor/Seller as to (a)
parties, and (b) to the extent known and material,
any of the following parties are affiliated with
one another:
-------------------------------------------------------------------------------------------------------------------
o Master Servicer Master Servicer
-------------------------------------------------------------------------------------------------------------------
o Securities Administrator Securities Administrator
-------------------------------------------------------------------------------------------------------------------
o Trustee Trustee
-------------------------------------------------------------------------------------------------------------------
o Any other 1108(a)(3) servicer Master Servicer
-------------------------------------------------------------------------------------------------------------------
o Any 1110 Originator Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
o Any 1112(b) Significant Obligor Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
o Any 1114 Credit Enhancement Provider Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
o Any 1115 Derivate Counterparty Provider Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
? Any other 1101(d)(1) material party Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
Whether there are any "outside the ordinary Depositor as to (a)
course business arrangements" other than would Sponsor/Seller as to (a)
be obtained in an arm's length transaction
between (a) the Sponsor (Seller), Depositor or
Issuing Entity on the one hand, and (b) any of the
following parties (or their affiliates) on the other
hand, that exist currently or within the past two
years and that are material to a
Certificateholder's understanding of the
Certificates:
-------------------------------------------------------------------------------------------------------------------
o Master Servicer Master Servicer
-------------------------------------------------------------------------------------------------------------------
o Securities Administrator Securities Administrator
-------------------------------------------------------------------------------------------------------------------
o Trustee Trustee
-------------------------------------------------------------------------------------------------------------------
o Any other 1108(a)(3) servicer Master Servicer
-------------------------------------------------------------------------------------------------------------------
o Any 1110 Originator Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
o Any 1112(b) Significant Obligor Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
o Any 1114 Credit Enhancement Provider Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
o Any 1115 Derivate Counterparty Provider Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
P-2
-------------------------------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-K DISCLOSURE
-------------------------------------------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
-------------------------------------------------------------------------------------------------------------------
o Any other 1101(d)(1) material party Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
Whether there are any specific relationships Depositor as to (a)
involving the transaction or the pool assets Sponsor/Seller as to (a)
between (a) the Sponsor (Seller), Depositor or
Issuing Entity on the one hand, and (b) any of the
following parties (or their affiliates) on the other
hand, that exist currently or within the past two
years and that are material:
-------------------------------------------------------------------------------------------------------------------
o Master Servicer Master Servicer
-------------------------------------------------------------------------------------------------------------------
o Securities Administrator Securities Administrator
-------------------------------------------------------------------------------------------------------------------
o Trustee Trustee
-------------------------------------------------------------------------------------------------------------------
o Any other 1108(a)(3) servicer Master Servicer
-------------------------------------------------------------------------------------------------------------------
o Any 1110 Originator Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
o Any 1112(b) Significant Obligor Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
o Any 1114 Credit Enhancement Provider Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
o Any 1115 Derivate Counterparty Provider Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
o Any other 1101(d)(1) material party Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
P-3
Q-3
EXHIBIT Q
Form 8-K Disclosure Information
-------------------------------------------------------------------------------------------------------------------
FORM 8-K DISCLOSURE INFORMATION
-------------------------------------------------------------------------------------------------------------------
Item on Form 8-K Party Responsible
-------------------------------------------------------------------------------------------------------------------
Item 1.01- Entry into a Material Definitive All parties, but only to the extent they are a party
Agreement
Disclosure is required regarding entry into or
amendment of any definitive agreement that is
material to the securitization, even if depositor is
not a party.
Examples: servicing agreement, custodial
agreement.
Note: disclosure not required as to definitive
agreements that are fully disclosed in the
prospectus
-------------------------------------------------------------------------------------------------------------------
Item 1.02- Termination of a Material All parties, but only to the extent they are a party
Definitive Agreement
Disclosure is required regarding termination of
any definitive agreement that is material to the
securitization (other than expiration in
accordance with its terms), even if depositor
is not a party.
Examples: servicing agreement, custodial
agreement.
-------------------------------------------------------------------------------------------------------------------
Item 1.03- Bankruptcy or Receivership
Disclosure is required regarding the bankruptcy
or receivership, with respect to any of the
following:
-------------------------------------------------------------------------------------------------------------------
o Sponsor (Seller) Depositor/Sponsor (Seller)
-------------------------------------------------------------------------------------------------------------------
o Depositor Depositor
-------------------------------------------------------------------------------------------------------------------
o Master Servicer Master Servicer
-------------------------------------------------------------------------------------------------------------------
o Affiliated Servicer Master Servicer
-------------------------------------------------------------------------------------------------------------------
o Other Servicer servicing 20% or more of the pool Master Servicer
assets at the time of the report
-------------------------------------------------------------------------------------------------------------------
o Other material servicers Master Servicer
-------------------------------------------------------------------------------------------------------------------
o Trustee Trustee
-------------------------------------------------------------------------------------------------------------------
o Securities Administrator Securities Administrator
-------------------------------------------------------------------------------------------------------------------
o Significant Obligor Depositor
-------------------------------------------------------------------------------------------------------------------
o Credit Enhancer (10% or more) Depositor
-------------------------------------------------------------------------------------------------------------------
o Derivative Counterparty Depositor
-------------------------------------------------------------------------------------------------------------------
Q-1
-------------------------------------------------------------------------------------------------------------------
FORM 8-K DISCLOSURE INFORMATION
-------------------------------------------------------------------------------------------------------------------
Item on Form 8-K Party Responsible
-------------------------------------------------------------------------------------------------------------------
o Custodian Custodian
-------------------------------------------------------------------------------------------------------------------
Item 2.04- Triggering Events that Depositor
Accelerate or Increasea Direct Financial Master Servicer
Obligation or an Obligation under an Off- Securities Administrator
Balance Sheet Arrangement
Includes an early amortization, performance
trigger or other event, including event of default,
that would materially alter the payment
priority/distribution of cash flows/amortization
schedule.
Disclosure will be made of events other than
waterfall triggers which are disclosed in the
monthly statements to the certificateholders.
-------------------------------------------------------------------------------------------------------------------
Item 3.03- Material Modification to Rights Securities Administrator
of Security Holders Trustee
Depositor
Disclosure is required of any material (with respect to each, only to the extent they are a
modification to documents defining the rights of party)
Certificateholders, including the Pooling and
Servicing Agreement.
-------------------------------------------------------------------------------------------------------------------
Item 5.03- Amendments of Articles of Depositor
Incorporation or Bylaws; Change of Fiscal
Year
Disclosure is required of any amendment "to the
governing documents of the issuing entity".
-------------------------------------------------------------------------------------------------------------------
Item 6.01- ABS Informational and Depositor
Computational Material
-------------------------------------------------------------------------------------------------------------------
Item 6.02- Change of Servicer or Master Servicer/Securities
Securities Administrator Administrator/Depositor
Requires disclosure of any removal, replacement,
substitution or addition of any Master Servicer,
affiliated servicer, other servicer servicing 10%
or more of pool assets at time of report, other
material servicers or trustee.
-------------------------------------------------------------------------------------------------------------------
Reg AB disclosure about any new Master Master Servicer
Servicer is also required.
-------------------------------------------------------------------------------------------------------------------
Reg AB disclosure about any new Trustee is also required. Trustee
-------------------------------------------------------------------------------------------------------------------
Item 6.03- Change in Credit Enhancement Depositor/Securities Administrator
or External Support
Covers termination of any enhancement in
manner other than by its terms, the addition of an
-------------------------------------------------------------------------------------------------------------------
Q-2
-------------------------------------------------------------------------------------------------------------------
FORM 8-K DISCLOSURE INFORMATION
-------------------------------------------------------------------------------------------------------------------
Item on Form 8-K Party Responsible
-------------------------------------------------------------------------------------------------------------------
enhancement, or a material change in the
enhancement provided. Applies to external
credit enhancements as well as derivatives.
-------------------------------------------------------------------------------------------------------------------
Reg AB disclosure about any new enhancement
provider is Depositor also required.
-------------------------------------------------------------------------------------------------------------------
Item 6.04- Failure to Make a Required Distribution Securities Administrator
-------------------------------------------------------------------------------------------------------------------
Item 6.05- Securities Act Updating Disclosure Depositor
If any material pool characteristic differs by 5%
or more at the time of issuance of the securities
from the description in the final prospectus,
provide updated Reg AB disclosure about the
actual asset pool.
-------------------------------------------------------------------------------------------------------------------
If there are any new servicers or originators
required Depositor to be disclosed under Regulation AB as
a result of the foregoing, provide the information
called for in Items 1108 and 1110 respectively.
-------------------------------------------------------------------------------------------------------------------
Item 7.01- Reg FD Disclosure Depositor
-------------------------------------------------------------------------------------------------------------------
Item 8.01- Other Events Depositor
Any event, with respect to which information is
not otherwise called for in Form 8-K, that the
registrant deems of importance to
certificateholders.
-------------------------------------------------------------------------------------------------------------------
Item 9.01- Financial Statements and Exhibits Responsible party for reporting/disclosing the
financial statement or exhibit
-------------------------------------------------------------------------------------------------------------------
Q-3
EXHIBIT R
Form of Back-up Certification
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2007-8
The Securities Administrator hereby certifies to the Master Servicer, and
its officers, directors and affiliates, and with the knowledge and intent that
they will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal year
[____] (the "Annual Report"), and all reports on Form 10-D required to be filed
in respect of period covered by the Annual Report (collectively with the Annual
Report, the "Reports"), of the Trust;
2. To my knowledge, (a) the Reports, taken as a whole, do not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by the
Annual Report, and (b) the Securities Administrator's assessment of compliance
and related attestation report referred to below, taken as a whole, do not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period covered by
such assessment of compliance and attestation report;
3. To my knowledge, the distribution information required to be provided by
the Securities Administrator under the Pooling and Servicing Agreement for
inclusion in the Reports is included in the Reports;
4. I am responsible for reviewing the activities performed by the
Securities Administrator under the Pooling and Servicing Agreement, and based on
my knowledge and the compliance review conducted in preparing the compliance
statement of the Securities Administrator required by the Pooling and Servicing
Agreement, and except as disclosed in the Reports, the Securities Administrator
has fulfilled its obligations under the Pooling and Servicing Agreement in all
material respects; and
5. The report on assessment of compliance with servicing criteria
applicable to the Securities Administrator for asset-backed securities of the
Securities Administrator and each Subcontractor utilized by the Securities
Administrator and related attestation report on assessment of compliance with
servicing criteria applicable to it required to be included in the Annual Report
in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and
15d-18 has been included as an exhibit to the Annual Report. Any material
instances of non-compliance are described in such report and have been disclosed
in the Annual Report.
In giving the certifications above, the Securities Administrator has
reasonably relied on information provided to it by the following unaffiliated
parties: [names of servicer(s), master servicer, subservicer, depositor,
trustee, custodian(s)]
R-1
Date: ______________________________
XXXXX FARGO BANK, N.A.
as Securities Administrator
By:___________________________
Name:
Title:
R-2
EXHIBIT S
Form of Additional Disclosure Notification
**SEND VIA FAX TO 000-000-0000 AND VIA EMAIL TO
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx AND VIA OVERNIGHT MAIL TO THE
ADDRESSES IMMEDIATELY BELOW**
Xxxxx Fargo Bank, N.A., as Securities Administrator
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Services- BAFC 2007-8--SEC REPORT PROCESSING
with a copy to:
Banc of America Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: General Counsel and Chief Financial Officer
RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [ ] of the Pooling and Servicing Agreement, dated as
of [ ][ ], 2006, among [ ], as [ ], [ ], as [ ], [ ], as [ ] and [ ], as [ ].
the undersigned, as [ ], hereby notifies you that certain events have come to
our attention that [will] [may] need to be disclosed on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
------------------------------------------------------------
S-1
List of any Attachments hereto to be included in the Additional Form
---- -- --- ----------- ------ -- -- -------- -- --- ---------- ----
[10-D][10-K][8-K] Disclosure:
-----------------------------
Any inquiries related to this notification should be directed to [ ], phone
number: [ ]; email address: [ ].
[NAME OF PARTY],
as [role]
By: ________________________
Name:
Title
S-2
EXHIBIT T
Form of Transferor Certificate Regarding Transfer of Residual Certificate
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services - BAFC 0000-0
Xxxx xx Xxxxxxx Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: BAFC Mortgage Pass-Through Certificates, Series 2007-8
Ladies and Gentlemen:
In connection with our disposition of the BAFC Mortgage Pass-Through
Certificates, Series 2007-8, Class 1-A-R Certificate (the "Residual
Certificate"), we certify that we have no knowledge that the transferee is not a
Permitted Transferee and we have no reason to believe that the statements made
in the transferee's Affidavit Regarding Transfer of Residual Certificate are
false.
Very truly yours,
[__________________]
T-1
