Exhibit 4
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XXXX XX XXXXXXX MORTGAGE SECURITIES, INC.,
as Depositor,
BANK OF AMERICA, N.A.,
as Servicer,
and
XXXXX FARGO BANK, N.A.,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated December 29, 2005
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Mortgage Pass-Through Certificates
Series 2005-12
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TABLE OF CONTENTS
PRELIMINARY STATEMENT......................................................
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms................................................
Section 1.02 Interest Calculations........................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.................................
Section 2.02 Acceptance by the Trustee of the Mortgage Loans..............
Section 2.03 Representations, Warranties and Covenants of the Servicer....
Section 2.04 Representations and Warranties of the Depositor as to the
Mortgage Loans..............................................
Section 2.05 Designation of Interests in the REMIC........................
Section 2.06 Designation of Start-up Day..................................
Section 2.07 REMIC Certificate Maturity Date..............................
Section 2.08 Execution and Delivery of Certificates.......................
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans...........................
Section 3.02 Subservicing; Enforcement of the Obligations of Servicer.....
Section 3.03 Fidelity Bond; Errors and Omissions Insurance................
Section 3.04 Access to Certain Documentation..............................
Section 3.05 Maintenance of Primary Insurance Policy; Claims;
Collections of BPP Mortgage Loan Payments...................
Section 3.06 Rights of the Depositor and the Trustee in Respect of the
Servicer....................................................
Section 3.07 Trustee to Act as Servicer...................................
Section 3.08 Collection of Mortgage Loan Payments; Servicer Custodial
Account and Certificate Account.............................
Section 3.09 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.............................................
Section 3.10 Access to Certain Documentation and Information Regarding
the Mortgage Loans..........................................
Section 3.11 Permitted Withdrawals from the Servicer Custodial Account
and Certificate Account.....................................
Section 3.12 Maintenance of Hazard Insurance..............................
Section 3.13 Enforcement of Due-On-Sale Clauses; Assumption Agreements....
Section 3.14 Realization Upon Defaulted Mortgage Loans; REO Property......
Section 3.15 Trustee to Cooperate; Release of Mortgage Files..............
Section 3.16 Documents, Records and Funds in Possession of the
Servicer to be Held for the Trustee.........................
Section 3.17 Servicing Compensation.......................................
Section 3.18 Annual Statement as to Compliance............................
Section 3.19 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.............................
Section 3.20 Advances.....................................................
Section 3.21 Modifications, Waivers, Amendments and Consents..............
Section 3.22 Reports to the Securities and Exchange Commission............
Section 3.23 Maintenance of the Rounding Account; Collections
Thereunder..................................................
Section 3.24 Buy-Down Account; Application of Buy-Down Funds..............
ARTICLE IV
SERVICER'S CERTIFICATE
Section 4.01 Servicer's Certificate.......................................
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS; REMIC ADMINISTRATION
Section 5.01 Distributions................................................
Section 5.02 Priorities of Distributions..................................
Section 5.03 Allocation of Losses.........................................
Section 5.04 Statements to Certificateholders.............................
Section 5.05 Tax Returns and Reports to Certificateholders................
Section 5.06 Tax Matters Person...........................................
Section 5.07 Rights of the Tax Matters Person in Respect of the Trustee...
Section 5.08 REMIC Related Covenants......................................
Section 5.09 Determination of LIBOR.......................................
Section 5.10 Principal Distributions on the Special Retail Certificates...
Section 5.11 Reserve Fund.................................................
Section 5.12 Policy Matters...............................................
Section 5.13 Distributions to Assured Guaranty............................
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates.............................................
Section 6.02 Registration of Transfer and Exchange of Certificates........
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 6.04 Persons Deemed Owners........................................
ARTICLE VII
THE DEPOSITOR AND THE SERVICER
Section 7.01 Respective Liabilities of the Depositor and the Servicer.....
Section 7.02 Merger or Consolidation of the Depositor or the Servicer.....
Section 7.03 Limitation on Liability of the Depositor, the Servicer
and Others..................................................
Section 7.04 Depositor and Servicer Not to Resign.........................
Section 7.05 Assignment or Delegation of Duties by the Servicer...........
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default............................................
Section 8.02 Remedies of Trustee..........................................
Section 8.03 Directions by Certificateholders and Duties of Trustee
During Event of Default.....................................
Section 8.04 Action upon Certain Failures of the Servicer and upon
Event of Default............................................
Section 8.05 Trustee to Act; Appointment of Successor.....................
Section 8.06 Notification to Certificateholders...........................
ARTICLE IX
THE TRUSTEE
Section 9.01 Duties of Trustee............................................
Section 9.02 Certain Matters Affecting the Trustee........................
Section 9.03 Trustee Not Liable for Certificates or Mortgage Loans........
Section 9.04 Trustee May Own Certificates.................................
Section 9.05 Eligibility Requirements for Trustee.........................
Section 9.06 Resignation and Removal of Trustee...........................
Section 9.07 Successor Trustee............................................
Section 9.08 Merger or Consolidation of Trustee...........................
Section 9.09 Appointment of Co-Trustee or Separate Trustee................
Section 9.10 Authenticating Agents........................................
Section 9.11 Trustee's Fees and Expenses..................................
Section 9.12 Appointment of Custodian.....................................
Section 9.13 Paying Agents................................................
Section 9.14 Limitation of Liability......................................
Section 9.15 Trustee May Enforce Claims Without Possession of
Certificates................................................
Section 9.16 Suits for Enforcement........................................
Section 9.17 Waiver of Bond Requirement...................................
Section 9.18 Waiver of Inventory, Accounting and Appraisal Requirement....
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase by the Depositor or Liquidation
of All Mortgage Loans......................................
Section 10.02 Additional Termination Requirements.........................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment...................................................
Section 11.02 Recordation of Agreement....................................
Section 11.03 Limitation on Rights of Certificateholders..................
Section 11.04 Governing Law...............................................
Section 11.05 Notices.....................................................
Section 11.06 Severability of Provisions..................................
Section 11.07 Certificates Nonassessable and Fully Paid...................
Section 11.08 Access to List of Certificateholders........................
Section 11.09 Recharacterization..........................................
Section 11.10 Third Party Beneficiary.....................................
EXHIBITS
Exhibit A-A-1 - Form of Face of Class A-1 Certificate
Exhibit A-A-2 - Form of Face of Class A-2 Certificate
Exhibit A-A-3 - Form of Face of Class A-3 Certificate
Exhibit A-A-4 - Form of Face of Class A-4 Certificate
Exhibit A-A-5 - Form of Face of Class A-5 Certificate
Exhibit A-A-6 - Form of Face of Class A-6 Certificate
Exhibit A-A-7 - Form of Face of Class A-7 Certificate
Exhibit A-A-8 - Form of Face of Class A-8 Certificate
Exhibit A-A-R - Form of Face of Class A-R Certificate
Exhibit A-30-IO - Form of Face of Class 30-IO Certificate
Exhibit A-30-PO - Form of Face of Class 30-PO Certificate
Exhibit B-B-1 - Form of Face of Class B-1 Certificate
Exhibit B-B-2 - Form of Face of Class B-2 Certificate
Exhibit B-B-3 - Form of Face of Class B-3 Certificate
Exhibit B-B-4 - Form of Face of Class B-4 Certificate
Exhibit B-B-5 - Form of Face of Class B-5 Certificate
Exhibit B-B-6 - Form of Face of Class B-6 Certificate
Exhibit C - Form of Reverse of all Certificates
Exhibit D - 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 the
Residual Certificate
Exhibit J - Contents of Servicing File
Exhibit K - Form of Special Servicing Agreement
Exhibit L - List of Recordation States
Exhibit M - Form of Initial Certification
Exhibit N - Form of Final Certification
Exhibit O - Form of Xxxxxxxx-Xxxxx Certification
Exhibit P - Form of Trustee's Certification
Exhibit Q - Form of Policy
Exhibit R - Principal Balance Schedule
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated December 29, 2005, is
hereby executed by and among BANC OF AMERICA MORTGAGE SECURITIES, INC., as
depositor (together with its permitted successors and assigns, the "Depositor"),
BANK OF AMERICA, N.A., as servicer (together with its permitted successors and
assigns, the "Servicer"), and XXXXX FARGO BANK, N.A., as trustee (together with
its permitted successors and assigns, the "Trustee").
W I T N E S S E T H T H A T:
- - - - - - - - - - - - - -
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer and the Trustee agree as follows:
PRELIMINARY STATEMENT
In exchange for the Certificates, the Depositor hereby conveys the
Trust Estate to the Trustee to create the Trust. The Trust Estate for federal
income tax purposes will be treated as a real estate mortgage investment conduit
(the "REMIC"). The Senior Certificates (other than the Class A-R Certificate)
and the Class B Certificates are referred to collectively as the "Regular
Certificates" and shall constitute "regular interests" in the REMIC. The Class
A-R Certificate shall be the "residual interest" in the REMIC. The Certificates
will represent the entire beneficial ownership interest in the Trust. The
"latest possible maturity date" for federal income tax purposes of all interests
created hereby will be the REMIC Certificate Maturity Date.
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess thereof
in which the Classes of Certificates shall be issuable:
Initial Class Integral
Certificate Multiples
Balance or Pass-Through Minimum in Excess
Classes Notional Amount Rate Denomination of Minimum
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Class A-1 $20,445,000.00 5.750% $1,000 $1,000
Class A-2 $81,828,000.00 (1) $1,000 $1
Class A-3 $14,232,000.00 (2) $1,000 $1
Class A-4 $132,775,000.00 5.750% $1,000 $1
Class A-5 $4,104,000.00 5.750% $1,000 $1
Class A-6 $320,008.00 (3) $25,000 $1
Class A-7 $27,032,000.00 5.750% $1,000 $1
Class A-8 $3,003,000.00 5.750% $1,000 $1
Class A-R $100.00 5.750% $100 N/A
Class 30-IO $3,526,940.00 5.750% $1,000,000 $1
Class 30-PO $7,149,445.00 (3) $25,000 $1
Class B-1 $5,406,000.00 5.750% $25,000 $1
Class B-2 $1,652,000.00 5.750% $25,000 $1
Class B-3 $901,000.00 5.750% $25,000 $1
Class B-4 $601,000.00 5.750% $25,000 $1
Class B-5 $451,000.00 5.750% $25,000 $1
Class B-6 $450,575.00 5.750% $25,000 $1
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(1) During the initial Interest Accrual Period, interest will accrue on the
Class A-2 Certificates at the rate of 5.190% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class A-2
Certificates at a per annum rate equal to (i) 0.900% plus (ii) LIBOR,
subject to a minimum rate of 0.900% and a maximum rate of 6.750%.
(2) During the initial Interest Accrual Period, interest will accrue on the
Class A-3 Certificates at the rate of 8.96976393% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class A-3
Certificates at a per annum rate equal to (i) 33.63545531% minus (ii) the
product of 5.74957841 and LIBOR, subject to a minimum rate of 0.000% and a
maximum rate of 33.63545531%.
(3) The Class A-6 and Class 30-PO Certificates are Principal Only Certificates
and will not be entitled to distributions in respect of interest.
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the meanings specified in this Article:
1933 Act: The Securities Act of 1933, as amended.
Accrued Certificate Interest: For any Distribution Date and each
interest-bearing Class, one month's interest accrued during the related Interest
Accrual Period at the applicable Pass-Through Rate on the applicable Class
Certificate Balance or Notional Amount.
Adjusted Pool Amount: With respect to any Distribution Date, the
Cut-off Date Pool Principal Balance of the Mortgage Loans minus the sum of (i)
all amounts in respect of principal received in respect of the Mortgage Loans
(including, without limitation, amounts received as Monthly Payments, Periodic
Advances, Principal Prepayments, Liquidation Proceeds and Substitution
Adjustment Amounts) and distributed to Holders of the Certificates 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 Loans 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, the difference between the Adjusted Pool Amount and the
Adjusted Pool Amount (PO Portion).
Adjusted Pool Amount (PO Portion): With respect to any Distribution
Date, the sum of the amounts, calculated as follows, with respect to all
Outstanding Mortgage Loans: the product of (i) the PO Percentage for each such
Mortgage Loan and (ii) the remainder of (A) the Cut-off Date Principal Balance
of such Mortgage Loan minus (B) the sum of (x) all amounts in respect of
principal received in respect of such Mortgage Loan (including, without
limitation, amounts received as Monthly Payments, Periodic Advances, Principal
Prepayments, Liquidation Proceeds and Substitution Adjustment Amounts) and
distributed to Holders of the Certificates on such Distribution Date and all
prior Distribution Dates and (y) the principal portion of any Realized Loss
(other than a Debt Service Reduction) incurred on such Mortgage Loan from the
Cut-off Date through the end of the month preceding such Distribution Date.
Advance: A Periodic Advance or a Servicing Advance.
Agreement: This Pooling and Servicing Agreement together with all
amendments hereof and supplements hereto.
Amount Held for Future Distribution: As to any Distribution Date,
the total of the amounts held in the Servicer Custodial Account at the close of
business on the preceding Determination Date on account of (i) Principal
Prepayments and Liquidation Proceeds received or made on the Mortgage Loans in
the month of such Distribution Date and (ii) payments which represent receipt of
Monthly Payments on the Mortgage Loans in respect of a Due Date or Due Dates
subsequent to the related Due Date.
Ancillary Income: All prepayment premiums (if any), assumption fees,
late payment charges and all other ancillary income and fees with respect to the
Mortgage Loans.
Appraised Value: With respect to any Mortgaged Property, either (i)
the lesser of (a) the appraised value determined in an appraisal obtained by the
originator at origination of such Mortgage Loan and (b) the sales price for such
property, except that, in the case of Mortgage Loans the proceeds of which were
used to refinance an existing mortgage loan, the Appraised Value of the related
Mortgaged Property is the appraised value thereof determined in an appraisal
obtained at the time of refinancing, or (ii) the appraised value determined in
an appraisal made at the request of a Mortgagor subsequent to origination in
order to eliminate the Mortgagor's obligation to keep a Primary Insurance Policy
in force.
Assignment of Mortgage: An individual assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form, sufficient under
the laws of the jurisdiction wherein the related Mortgaged Property is located
to give record notice of the sale of the Mortgage.
Assured Guaranty: Assured Guaranty Corp., a Maryland insurance
corporation, or any successor thereto.
Assured Guaranty Contact Person: The officer designated by the
Servicer to provide information to Assured Guaranty pursuant to Section 5.12(g).
The initial Assured Guaranty Contact Person is appointed in Section 5.12.
Assured Guaranty Default: The existence and continuance of any of
the following:
(i) Assured Guaranty fails to make a payment required under the
Policy in accordance with its terms;
(ii) Assured Guaranty (A) files any petition or commences any case
or proceeding under any provision or similar federal or state law relating to
insolvency, bankruptcy, rehabilitation, liquidation or reorganization, (B) makes
a general assignment for the benefit of its creditors, or (C) has an order for
relief entered against it under the United States Bankruptcy Code or any similar
federal or state law relating to insolvency, bankruptcy, rehabilitation,
liquidation or reorganization which is final and nonappealable; or
(iii) a court of competent jurisdiction, the Maryland Insurance
Administration or other competent regulatory authority enters a final and
nonappealable order, judgment or decree (1) appointing a custodian, trustee,
agent or receiver for Assured Guaranty or for all or any material portion of its
property or (2) authorizing the taking of possession by a custodian, trustee,
agent or receiver of Assured Guaranty (or the taking of possession of all or any
material portion of the property of Assured Guaranty).
Authenticating Agents: As defined in Section 9.10.
Bank of America: Bank of America, N.A., a national banking
association, or its successor in interest.
Book-Entry Certificate: Any Class of Certificates other than the
Physical Certificates.
BPP Mortgage Loan: Any Mortgage Loan which includes a Borrowers
Protection Plan(R) addendum to the related Mortgage Note whereby Bank of America
agrees to cancel (i) certain payments of principal and interest on such Mortgage
Loan for up to twelve months upon the disability or involuntary unemployment of
the Mortgagor or (ii) the outstanding principal balance of the Mortgage Loan
upon the accidental death of the Mortgagor; provided that such Borrowers
Protection Plan(R) has not been terminated in accordance with its terms.
BPP Mortgage Loan Payment: With respect to any BPP Mortgage Loan,
the Monthly Covered Amount or Total Covered Amount, if any, payable by Bank of
America pursuant to Section 5 of the Mortgage Loan Purchase Agreement.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii)
with respect to any date which relates to an obligation of Assured Guaranty, a
day on which Assured Guaranty is closed or (iii) a day on which banking
institutions in the State of North Carolina, the State of New York, the State of
Minnesota, the State of Maryland, any state in which the servicing offices of
the Servicer are located or any state in which the Corporate Trust Office is
located are required or authorized by law or executive order to be closed.
Buy-Down Account: The separate Eligible Account or Accounts created
and maintained by the Servicer pursuant to Section 3.24.
Buy-Down Agreement: An agreement governing the application of
Buy-Down Funds with respect to a Buy-Down Mortgage Loan.
Buy-Down Funds: Money advanced by a builder, seller or other
interested party to reduce a Mortgagor's monthly payment during the initial
years of a Buy-Down Mortgage Loan.
Buy-Down Mortgage Loan: Any Mortgage Loan in respect of which,
pursuant to a Buy-Down Agreement, the monthly interest payments made by the
related Mortgagor will be less than the scheduled monthly interest payments on
such Mortgage Loan, with the resulting difference in interest payments being
provided from Buy-Down Funds.
Calculated Principal Distribution: As defined in Section 5.03(d).
Certificate: Any of the Banc of America Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 2005-12 that are issued pursuant to
this Agreement.
Certificate Account: The Eligible Account created and maintained by
the Trustee pursuant to Section 3.08(c) in the name of the Trustee for the
benefit of the Certificateholders and designated "Xxxxx Fargo Bank, N.A., in
trust for registered holders of Banc of America Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 2005-12." 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
Trustee.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of a Book-Entry Certificate. With respect to
any Definitive Certificate, the Certificateholder of such Certificate.
Certificate Register: The register maintained pursuant to Section
6.02.
Certificate Registrar: The registrar appointed pursuant to Section
6.02.
Certificateholder: The Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor, the Servicer or any affiliate thereof shall be deemed not
to be outstanding and the Percentage Interest and Voting Rights evidenced
thereby shall not be taken into account in determining whether the requisite
amount of Percentage Interests or Voting Rights, as the case may be, necessary
to effect any such consent has been obtained, unless such entity is the
registered owner of the entire Class of Certificates, provided that the Trustee
shall not be responsible for knowing that any Certificate is registered in the
name of such an affiliate unless one of its Responsible Officers has actual
knowledge.
Certification: As defined in Section 3.22(b).
Class: As to the Certificates, the Class A-1, Class A-2, Class A-3,
Class A-4, Class A-5, Class A-6, Class X-0, Xxxxx X-0, Class A-R, Class 30-IO,
Class 30-PO, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class
B-6, as the case may be.
Class A-1 Interest Loss Amount: As to any Distribution Date, the
excess, if any, of (a) the Interest Distribution Amount for the Class A-1
Certificates determined without regard to clause (ii) of the definition thereof
and without regard to the reductions pursuant to Section 5.02(c) hereof, net of
any Prepayment Interest Shortfalls and net of any Relief Act Reductions
allocated to the Class A-1 Certificates over (b) the amount of the Pool
Distribution Amount available to be distributed in respect of the Class A-1
Certificates on such Distribution Date pursuant to clause (ii) of Section
5.02(a) applied to the amounts payable pursuant to clause (i) of the definition
of "Interest Distribution Amount."
Class A-1 Principal Loss Amount: As to any Distribution Date, any
amount allocated to the Class A-1 Certificates which reduces the Class
Certificate Balance of the Class A-1 Certificates after the Senior Credit
Support Depletion Date with respect to such Distribution Date pursuant to clause
(ii) of the definition of Class Certificate Balance of the Class A-1
Certificates.
Class A-7 Loss Amount: With respect to any Distribution Date after
the Senior Credit Support Depletion Date, the amount, if any, by which the Class
Certificate Balance of the Class A-7 Certificates would be reduced as a result
of the allocation of any reduction pursuant to Section 5.03(b) to such Class,
without regard to the operation of Section 5.03(e).
Class A-8 Loss Allocation Amount: With respect to any Distribution
Date after the Senior Credit Support Depletion Date, the lesser of (a) the Class
Certificate Balance of the Class A-8 Certificates with respect to such
Distribution Date prior to any reduction for the Class A-8 Loss Allocation
Amount and (b) the Class A-7 Loss Amount with respect to such Distribution Date.
Class 30-IO Notional Amount: As to any Distribution Date and the
Class 30-IO Certificates, the product of (i) the aggregate Stated Principal
Balance of the Premium Mortgage Loans on the Due Date in the month preceding the
month of such Distribution Date and (ii) a fraction, (a) the numerator of which
is equal to the weighted average of the Net Mortgage Interest Rates of the
Premium Mortgage Loans (based on the Stated Principal Balances of the Premium
Mortgage Loans as of the Due Date in the month preceding the month of such
Distribution Date) minus 5.750% and (b) the denominator of which is equal to
5.750%.
Class B Certificates: The Class B-1, Class B-2, Class B-3, Class
B-4, Class B-5 and Class B-6 Certificates.
Class Certificate Balance: With respect to any Class (other than the
Class 30-IO Certificates) and any date of determination, and subject to Section
5.03(f), the Initial Class Certificate Balance of such Class minus (A) the sum
of (i) all distributions of principal made with respect thereto (including in
the case of any Class of Class B Certificates any principal otherwise payable to
such Class of Class B Certificates used to pay any Class PO Deferred Amounts),
(ii) all reductions in Class Certificate Balance previously allocated thereto
pursuant to Section 5.03(b) and (iii) in the case of the Class A-8 Certificates,
any reduction allocated thereto pursuant to Section 5.03(e) plus (B) the sum of
(x) all increases in Class Certificate Balance previously allocated thereto
pursuant to Section 5.03(b) and (y) in the case of the Class A-8 Certificates,
any increases allocated thereto pursuant to Section 5.03(e). The Class 30-IO
Certificates are Interest-Only Certificates and have no Class Certificate
Balance.
Class Interest Shortfall: For any Distribution Date and each
interest-bearing Class, 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 PO Deferred Amount: As to any Distribution Date and the Class
30-PO Certificates, the sum of the amounts by which the Class Certificate
Balance of such Class 30-PO Certificates will be reduced on such Distribution
Date or has been reduced on prior Distribution Dates as a result of Section
5.03(b) less the sum of (a) the PO Recoveries for prior Distribution Dates and
(b) the amounts distributed to such Class 30-PO Certificates pursuant to Section
5.02(a)(iv) on prior Distribution Dates.
Class Unpaid Interest Shortfall: As to any Distribution Date and
each interest-bearing Class, 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."
Closing Date: December 29, 2005.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest: With respect to any Distribution Date, the
least of (a) the aggregate Servicing Fee for such Distribution Date (before
giving effect to any reduction pursuant to Section 3.17), (b) the Prepayment
Interest Shortfall for such Distribution Date and (c) one-twelfth of 0.25% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Due Date
in the month preceding the month of such Distribution Date.
Co-op Shares: Shares issued by private non-profit housing
corporations.
Corporate Trust Office: The principal corporate trust office of the
Trustee at which at any particular time its corporate trust business with
respect to this Agreement is conducted, which office at the date of the
execution of this instrument is located at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000-0000, Attention: Corporate Trust Services - BOAMS 2005-12, and
for certificate transfer purposes is located at Xxxxx Xxxxxx xxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Services -
BOAMS 2005-12, or at such other address as the Trustee may designate from time
to time by notice to the Certificateholders, Assured Guaranty, the Depositor and
the Servicer.
Custodian: Initially, the Trustee, and thereafter the Custodian, if
any, hereafter appointed by the Trustee pursuant to Section 9.12. The Custodian
may (but need not) be the Trustee or any Person directly or indirectly
controlling or controlled by or under common control of either of them. Neither
the Servicer nor the Depositor, nor any Person directly or indirectly
controlling or controlled by or under common control with any such Person may be
appointed Custodian.
Customary Servicing Procedures: With respect to the Servicer,
procedures (including collection procedures) that the Servicer customarily
employs and exercises in servicing and administering mortgage loans for its own
account and which are in accordance with accepted mortgage servicing practices
of prudent lending institutions servicing mortgage loans of the same type as the
Mortgage Loans in the jurisdictions in which the related Mortgaged Properties
are located.
Cut-off Date: December 1, 2005.
Cut-off Date Pool Principal Balance: The aggregate of the Cut-off
Date Principal Balances of the Mortgage Loans, which is $300,350,130.52.
Cut-off Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof as of the close of business on the Cut-off Date,
reduced by all installments of principal due on or prior thereto whether or not
paid.
Debt Service Reduction: As to any Mortgage Loan and any
Determination Date, the excess of (i) the Monthly Payment due on the related Due
Date under the terms of such Mortgage Loan over (ii) the amount of the monthly
payment of principal and/or interest required to be paid with respect to such
Due Date by the Mortgagor as established by a court of competent jurisdiction
(pursuant to an order which has become final and nonappealable) as a result of a
proceeding initiated by or against the related Mortgagor under the Bankruptcy
Code, as amended from time to time (11 U.S.C.); provided that no such excess
shall be considered a Debt Service Reduction so long as (a) the Servicer is
pursuing an appeal of the court order giving rise to any such modification and
(b)(1) such Mortgage Loan is not in default with respect to payment due
thereunder in accordance with the terms of such Mortgage Loan as in effect on
the Cut-off Date or (2) Monthly Payments are being advanced by the Servicer in
accordance with the terms of such Mortgage Loan as in effect on the Cut-off
Date.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that became
the subject of a Debt Service Reduction.
Deceased Holder: A Certificate Owner of a Special Retail Certificate
who was living at the time such interest was acquired and whose executor or
other authorized representative causes to be furnished to the Trustee and the
Depository Participant a certified copy of the death certificate and any
additional evidence of death satisfactory to the Trustee and the Depository
Participant and any tax waivers requested by the Trustee and the Depository
Participant.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
cured, repurchased or substituted for pursuant to Section 2.02 or 2.04.
Deficiency Amount: With respect to the Class A-1 Certificates on
each Distribution Date, the sum of (i) the Class A-1 Interest Loss Amount for
such Distribution Date and (ii) the Class A-1 Principal Loss Amount for such
Distribution Date.
Deficient Valuation: As to any Mortgage Loan and any Determination
Date, the excess of (i) the then outstanding indebtedness under such Mortgage
Loan over (ii) the secured valuation thereof established by a court of competent
jurisdiction (pursuant to an order which has become final and nonappealable) as
a result of a proceeding initiated by or against the related Mortgagor under the
Bankruptcy Code, as amended from time to time (11 U.S.C.), pursuant to which
such Mortgagor retained such Mortgaged Property; provided that no such excess
shall be considered a Deficient Valuation so long as (a) the Servicer is
pursuing an appeal of the court order giving rise to any such modification and
(b)(1) such Mortgage Loan is not in default with respect to payments due
thereunder in accordance with the terms of such Mortgage Loan as in effect on
the Cut-off Date or (2) Monthly Payments are being advanced by the Servicer in
accordance with the terms of such Mortgage Loan as in effect on the Cut-off
Date.
Deficient Valuation Mortgage Loan: Any Mortgage Loan that became the
subject of a Deficient Valuation.
Definitive Certificates: As defined in Section 6.02(c)(iii).
Depositor: Banc of America Mortgage Securities, Inc., a Delaware
corporation, or its successor in interest, as depositor of the Trust Estate.
Depository: The Depository Trust Company, the nominee of which is
Cede & Co., as the registered Holder of the Book-Entry Certificates or any
successor thereto appointed in accordance with this Agreement. The Depository
shall at all times be a "clearing corporation" as defined in Section 8-102(3) of
the Uniform Commercial Code of the State of New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date, the 16th day of the
month of the related Distribution Date or, if such 16th day is not a Business
Day, the Business Day immediately preceding such 16th day.
Discount Mortgage Loan: A Mortgage Loan with a Net Mortgage Interest
Rate as of the Cut-off Date that is less than 5.750% per annum.
Distribution Date: The 25th day of each month beginning in January
2006 (or, if such day is not a Business Day, the next Business Day).
Due Date: As to any Distribution Date and each Mortgage Loan, the
first day in the calendar month of such Distribution Date.
Eligible Account: Any of (i) an account or accounts maintained with
(a) Bank of America or (b) a federal or state chartered depository institution
or trust company the short-term unsecured debt obligations of which (or, in the
case of a depository institution or trust company that is the principal
subsidiary of a holding company, the debt obligations of such holding company)
have the highest short-term ratings of each Rating Agency at the time any
amounts are held on deposit therein, or (ii) an account or accounts in a
depository institution or trust company in which such accounts are insured by
the FDIC (to the limits established by the FDIC) and the uninsured deposits in
which accounts are otherwise secured such that, as evidenced by an Opinion of
Counsel delivered to the Trustee and to each Rating Agency, the
Certificateholders have a claim with respect to the funds in such account or a
perfected first priority security interest against any collateral (which shall
be limited to Permitted Investments) securing such funds that is superior to
claims of any other depositors or creditors of the depository institution or
trust company in which such account is maintained, or (iii) a trust account or
accounts maintained with the trust department of a federal or state chartered
depository institution or trust company, acting in its fiduciary capacity or
(iv) any other account acceptable to each Rating Agency. Eligible Accounts may
bear interest and may include, if otherwise qualified under this definition,
accounts maintained with the Trustee or Bank of America.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificates: Any Class B-4, Class B-5 or Class B-6
Certificate.
Escrow Account: As defined in Section 3.09.
Escrow Payments: The amounts constituting taxes, assessments,
Primary Insurance Policy premiums, fire and hazard insurance premiums and other
payments as may be required to be escrowed by the Mortgagor with the mortgagee
pursuant to the terms of any Mortgage Note or Mortgage.
Events of Default: As defined in Section 8.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any Liquidation Proceeds of such Mortgage
Loan received in the calendar month in which such Mortgage Loan became a
Liquidated Mortgage Loan, net of any amounts previously reimbursed to the
Servicer as Nonrecoverable Advance(s) with respect to such Mortgage Loan
pursuant to Section 3.11(a)(iii), exceeds (i) the unpaid principal balance of
such Liquidated Mortgage Loan as of the Due Date in the month in which such
Mortgage Loan became a Liquidated Mortgage Loan plus (ii) accrued interest at
the Mortgage Interest Rate from the Due Date as to which interest was last paid
or for which a Periodic Advance was made (and not reimbursed) up to the Due Date
applicable to the Distribution Date immediately following the calendar month
during which such liquidation occurred.
Exchange Act: The Securities Exchange Act of 1934, as amended.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
Final Distribution Date: The Distribution Date on which the final
distribution in respect of the Certificates will be made pursuant to Section
10.01.
Financial Market Service: Bloomberg Financial Service and any other
financial information provider designated by the Depositor by written notice to
the Trustee.
FIRREA: The Financial Institutions Reform, Recovery and Enforcement
Act of 1989, as amended.
Fitch: Fitch Ratings, or any successor thereto.
FNMA: Xxxxxx Xxx, or any successor thereto.
Form 10-K: As defined in Section 3.22(a).
Fractional Interest: As defined in Section 5.02(d).
Holder: A Certificateholder.
Independent: When used with respect to any specified Person means
such a Person who (i) is in fact independent of the Depositor and the Servicer,
(ii) does not have any direct financial interest or any material indirect
financial interest in the Depositor or the Servicer or in an affiliate of either
of them, and (iii) is not connected with the Depositor or the Servicer as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
Indirect Depository Participant: A broker, dealer, bank or other
financial institution or other Person maintaining a custodial relationship with
a Depository Participant.
Initial Class Certificate Balance: As to each Class of Certificates
(other than the Class 30-IO Certificates), the Class Certificate Balance set
forth in the Preliminary Statement. The Class 30-IO Certificates are
Interest-Only Certificates and have no Initial Class Certificate Balance.
Initial Notional Amount: As to the Interest-Only Certificates, the
Notional Amount set forth in the Preliminary Statement.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Estate, any related insurance policy, including all riders and
endorsements thereto in effect, including any replacement policy or policies for
any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such Insurance
Proceeds in respect of Insured Expenses.
Insured Amount: With respect to any Distribution Date and the Class
A-1 Certificates, the Deficiency Amount for such Distribution Date and any
Preference Amount.
Insured Expenses: Expenses covered by an Insurance Policy or any
other insurance policy with respect to the Mortgage Loans.
Insured Payment: With respect to any Distribution Date and the Class
A-1 Certificates, the aggregate amount paid by Assured Guaranty to the Trustee
in respect of (i) the Deficiency Amount for such Distribution Date and (ii) the
Preference Amounts for any given Business Day relating to such Distribution
Date.
Interest Accrual Period: As to any Distribution Date and each Class
of Certificates (other than the Class A-2, Class A-3 and Class 30-PO
Certificates), the period from and including the first day of the calendar month
preceding the calendar month of such Distribution Date to but not including the
first day of the calendar month of such Distribution Date. As to any
Distribution Date and the Class A-2 and Class A-3 Certificates, the period from
and including the 25th day of the calendar month preceding the calendar month in
which such Distribution Date occurs and ending on the 24th day of the calendar
month in which such Distribution Date occurs.
Interest Distribution Amount: For any Distribution Date and each
interest- bearing Class, the sum of (i) the Accrued Certificate Interest,
subject to reduction pursuant to Section 5.02(c) and (ii) any Class Unpaid
Interest Shortfall for such Class.
Interest-Only Certificates: Any Class of Certificates entitled to
distributions of interest, but no distributions of principal. The Class 30-IO
Certificates are the only Class of Interest-Only Certificates.
Interest Settlement Rate: As defined in Section 5.09.
LIBOR: As to any Distribution Date, the arithmetic mean of the
London Interbank offered rate quotations for one-month U.S. Dollar deposits, as
determined by the Trustee in accordance with Section 5.09.
LIBOR Business Day: Any Business Day on which banks are open for
dealing in foreign currency and exchange in London, England or the City of New
York.
LIBOR Certificates: Both of the Class A-2 and Class A-3
Certificates.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) that was liquidated in the
calendar month preceding the month of such Distribution Date and as to which the
Servicer has certified (in accordance with this Agreement) that it has received
all proceeds it expects to receive in connection with the liquidation of such
Mortgage Loan including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or otherwise or
amounts received in connection with any condemnation or partial release of a
Mortgaged Property and any other proceeds received in connection with an REO
Property, less the sum of related unreimbursed Servicing Fees and Advances.
Living Holder: A Certificate Owner of a Special Retail Certificate
other than a Deceased Holder.
Loan-to-Value Ratio: With respect to any Mortgage Loan and any date
of determination, the fraction, expressed as a percentage, the numerator of
which is the outstanding principal balance of the related Mortgage Loan at the
date of determination and the denominator of which is the Appraised Value of the
related Mortgaged Property.
MERS: As defined in Section 2.01(b)(iii).
Monthly Covered Amount: As defined in the Mortgage Loan Purchase
Agreement.
Monthly Form 8-K: As defined in Section 3.22(a).
Monthly Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan or the Monthly Covered Amount
representing such scheduled monthly payment.
Moody's: Xxxxx'x Investors Service, Inc., or any successor thereto.
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on a Mortgaged Property securing a Mortgage Note or creating a first
lien on a leasehold interest.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan.
Mortgage Interest Rate: As to any Mortgage Loan, the per annum rate
of interest at which interest accrues on the principal balance of such Mortgage
Loan in accordance with the terms of the related Mortgage Note.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated December 29, 2005, between Bank of America, as seller, and the
Depositor, as purchaser.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to
time amended by the Servicer to reflect the addition of Substitute Mortgage
Loans and the deletion of Defective Mortgage Loans pursuant to the provisions of
this Agreement) transferred to the Trustee as part of the Trust Estate and from
time to time subject to this Agreement, attached hereto as Exhibit D, setting
forth the following information with respect to each Mortgage Loan: (i) the
Mortgage Loan identifying number; (ii) a code indicating whether the Mortgaged
Property is owner-occupied; (iii) the property type for each Mortgaged Property;
(iv) the original months to maturity or the remaining months to maturity from
the Cut-off Date; (v) the Loan-to-Value Ratio at origination; (vi) the Mortgage
Interest Rate as of the Cut-off Date; (vii) the date on which the first Monthly
Payment was due on the Mortgage Loan, and, if such date is not the Due Date
currently in effect, such Due Date; (viii) the stated maturity date; (ix) the
amount of the Monthly Payment as of the Cut-off Date; (x) the paid-through date;
(xi) the original principal amount of the Mortgage Loan; (xii) the principal
balance of the Mortgage Loan as of the close of business on the Cut-off Date,
after application of payments of principal due on or before the Cut-off Date,
whether or not collected, and after deduction of any payments collected of
scheduled principal due after the Cut-off Date; (xiii) a code indicating the
purpose of the Mortgage Loan; (xiv) a code indicating the documentation style;
(xv) the Appraised Value; and (xvi) the closing date of such Mortgage Loan. With
respect to the Mortgage Loans in the aggregate, the Mortgage Loan Schedule shall
set forth the following information, as of the Cut-off Date: (i) the number of
Mortgage Loans; (ii) the current aggregate outstanding principal balance of the
Mortgage Loans; (iii) the weighted average Mortgage Interest Rate of the
Mortgage Loans; and (iv) the weighted average months to maturity of the Mortgage
Loans.
Mortgage Loans: Such of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 as from time to time are held as a part
of the Trust Estate (including any Substitute Mortgage Loans and REO Property),
the Mortgage Loans originally so held being identified in the Mortgage Loan
Schedule.
Mortgage Note: The originally executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan,
together with all riders thereto and amendments thereof.
Mortgaged Property: The underlying property securing a Mortgage
Loan, which may include Co-op Shares or residential long-term leases.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Interest Rate: As to any Mortgage Loan and Distribution
Date, such Mortgage Loan's Mortgage Interest Rate thereon on the first day of
the month preceding the month of the related Distribution Date reduced by (i)
the Servicing Fee Rate and (ii) the Trustee Fee Rate.
Non-PO Percentage: As to any Discount Mortgage Loan, a fraction
(expressed as a percentage), the numerator of which is the Net Mortgage Interest
Rate as of the Cut-off Date of such Discount Mortgage Loan and the denominator
of which is 5.750%. As to any Mortgage Loan that is not a Discount Mortgage
Loan, 100%.
Non-PO Principal Amount: As to any Distribution Date, the sum of (i)
the sum of the applicable Non-PO Percentage of (a) the principal portion of each
Monthly Payment due on each Mortgage Loan on the related Due Date, (b) the
Stated Principal Balance, as of the date of repurchase, of each Mortgage Loan
that was repurchased by the Depositor pursuant to this Agreement during the
calendar month preceding the month of such Distribution Date, (c) any
Substitution Adjustment Amount in connection with a Defective Mortgage Loan
received during the calendar month preceding the month of such Distribution
Date, (d) any Liquidation Proceeds allocable to recoveries of principal of
Mortgage Loans that are not yet Liquidated Mortgage Loans received during the
calendar month preceding the month of such Distribution Date, (e) with respect
to each Mortgage Loan that became a Liquidated Mortgage Loan during the calendar
month preceding the month of such Distribution Date, the amount of Liquidation
Proceeds (excluding Excess Proceeds) allocable to principal received with
respect to such Mortgage Loan during the calendar month preceding the month of
such Distribution Date and (f) all Principal Prepayments received during the
calendar month preceding the month of such Distribution Date; and (ii) the
Non-PO Recovery for such Distribution Date.
Non-PO Recovery: As to any Distribution Date, the amount of all
Recoveries received during the calendar month preceding the month of such
Distribution Date less the PO Recovery for such Distribution Date.
Non-Supported Interest Shortfalls: As to any Distribution Date the
amount, if any, by which the aggregate of Prepayment Interest Shortfalls exceeds
Compensating Interest for such Distribution Date.
Non-U.S. Person: A Person other than a U.S. Person.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made in respect of a Mortgage Loan which has not been previously
reimbursed and which, in the good faith judgment of the Servicer, will not or,
in the case of a proposed Advance, would not be ultimately recoverable from the
related Mortgagor, related Liquidation Proceeds, or other recoveries in respect
of the related Mortgage Loan.
Notice of Nonpayment: The notice to be delivered by the Trustee to
Assured Guaranty with respect to any date as to which a claim for an Insured
Amount shall be made, which shall be in the form attached to the Policy.
Notional Amount: With respect to the Class 30-IO Certificates and
any date of determination, the Class 30-IO Notional Amount.
OCC: The Office of the Comptroller of the Currency.
Offered Certificates: The Senior Certificates, Class B-1, Class B-2
and Class B-3 Certificates.
Officer's Certificate: A certificate signed by the Chairman of the
Board, Vice Chairman of the Board, President or a Vice President and by the
Treasurer, the Secretary or one of the Assistant Treasurers or Assistant
Secretaries, or any other duly authorized officer of the Depositor or the
Servicer, as the case may be, and delivered to the Trustee.
Opinion of Counsel: A written opinion of counsel acceptable to the
Trustee, who may be counsel for the Depositor or the Servicer, except that any
opinion of counsel relating to the qualification of the Trust Estate as 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 Subordinate Certificates, the corresponding percentage described
below, as of the Closing Date:
Class B-1 1.38%
Class B-2 0.82%
Class B-3 0.51%
Class B-4 0.31%
Class B-5 0.15%
Class B-6 0.00%
Original Subordinate Class Certificate Balance: $9,461,575.00.
OTS: The Office of Thrift Supervision.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan which
was not the subject of a Principal Prepayment in Full prior to such Due Date,
which did not become a Liquidated Mortgage Loan prior to such Due Date and which
was not purchased from the Trust prior to such Due Date pursuant to Section 2.02
or 2.04.
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
PAC Certificates: The Class A-4 and Class A-5 Certificates.
PAC Group: The PAC Certificates.
PAC Principal Amount: As to any Distribution Date and the PAC Group,
the amount, if any, that would reduce the aggregate Class Certificate Balance of
the PAC Group to the applicable balance shown in the table set forth in Exhibit
R with respect to such Distribution Date.
Pass-Through Rate: As to each Class of interest-bearing
Certificates, the per annum rate set forth or described in the Preliminary
Statement.
Paying Agent: As defined in Section 9.13.
Percentage Interest: As to any Certificate (other than a Special
Retail Certificate), the percentage obtained by dividing the initial Certificate
Balance of such Certificate (or the initial notional amount for the Class 30-IO
Certificates) by the Initial Class Certificate Balance or Initial Notional
Amount, as applicable, of the Class of which such Certificate is a part. With
respect to a Special Retail Certificate, the percentage obtained by dividing the
current Certificate Balance of each such Certificate by the current Class
Certificate Balance of the Class of which such Certificate is a part.
Periodic Advance: The payment required to be made by the Servicer
with respect to any Distribution Date pursuant to Section 3.20, the amount of
any such payment being equal to the aggregate of Monthly Payments (net of the
Servicing Fee) on the Mortgage Loans (including any REO Property) that were due
on the related Due Date and not received as of the close of business on the
related Determination Date, less the aggregate amount of any such delinquent
payments that the Servicer has determined would constitute a Nonrecoverable
Advance if advanced.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by the
United States, FHLMC, FNMA or any agency or instrumentality of the United
States when such obligations are backed by the full faith and credit of
the United States; provided that such obligations of FHLMC or FNMA shall
be limited to senior debt obligations and mortgage participation
certificates other than investments in mortgage-backed or mortgage
participation securities with yields evidencing extreme sensitivity to the
rate of principal payments on the underlying mortgages, which shall not
constitute Permitted Investments hereunder;
(ii) repurchase agreements on obligations specified in clause (i)
maturing not more than one month from the date of acquisition thereof with
a corporation incorporated under the laws of the United States or any
state thereof rated not lower than "F-1" by Fitch and "P-1" by Moody's;
(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 "P-1" by Moody's;
(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 "P-1" by Moody's;
(v) investments in money market funds (including funds of the
Trustee or its affiliates, or funds for which an affiliate of the Trustee
acts as advisor, as well as funds for which the Trustee and its affiliates
may receive compensation) rated "AAA" by Fitch (if rated by Fitch) and
"Aaa" by Moody's or otherwise approved in writing by each Rating Agency;
and
(vi) other obligations or securities that are acceptable to each
Rating Agency and, as evidenced by an Opinion of Counsel obtained by the
Servicer, will not affect the qualification of the Trust Estate as 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 electric and telephone cooperatives described in Code
Section 1381(a)(2)(C), (v) a Person with respect to whom the income on the
Residual Certificate is allocable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of such Person or
any other Person, and (vi) any other Person so designated by the Servicer based
on an Opinion of Counsel to the effect that any transfer to such Person may
cause the Trust or any other Holder of the 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 A-R, Class B-4, Class B-5 and Class
B-6 Certificates.
Plan: As defined in Section 6.02(e).
Policy: The irrevocable Assured Guaranty Insurance Policy No.
D-2005-140, including any endorsements thereto, issued by Assured Guaranty with
respect to the Class A-1 Certificates, in the form attached hereto as Exhibit Q.
Policy Payment Account: The account maintained pursuant to Section
5.12(b).
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, the sum of the
applicable PO Percentage of (a) the principal portion of each Monthly Payment
due on each Mortgage Loan on the related Due Date, (b) the Stated Principal
Balance, as of the date of repurchase, of each Mortgage Loan that was
repurchased by the Depositor pursuant to this Agreement during the calendar
month preceding the month of such Distribution Date, (c) any Substitution
Adjustment Amount in connection with any Defective Mortgage Loan received during
the calendar month preceding the month of such Distribution Date, (d) any
Liquidation Proceeds allocable to recoveries of principal of Mortgage Loans that
are not yet Liquidated Mortgage Loans received during the calendar month
preceding the month of such Distribution Date, (e) with respect to each Mortgage
Loan that became a Liquidated Mortgage Loan during the calendar month preceding
the month of such Distribution Date, the amount of Liquidation Proceeds
(excluding Excess Proceeds) allocable to principal received with respect to such
Mortgage Loan during the calendar month preceding the month of such Distribution
Date with respect to such Mortgage Loan and (f) all Principal Prepayments
received on the Mortgage Loans received during the calendar month preceding the
month of such Distribution Date.
PO Recovery: As to any Distribution Date, the lesser of (a) the
Class PO Deferred Amount for the Class 30-PO Certificates for such Distribution
Date and (b) an amount equal to the sum as to each Mortgage Loan as to which
there has been a Recovery received during the calendar month preceding the month
of such Distribution Date, of the product of (x) the PO Percentage with respect
to such Mortgage Loan and (y) the amount of the Recovery with respect to such
Mortgage Loan.
Pool Distribution Amount: As to any Distribution Date, the excess of
(a) the sum of (i) the aggregate of (A) the interest portion of any Monthly
Payment on a Mortgage Loan (net of the Servicing Fee) and the principal portion
of any Monthly Payment on a Mortgage Loan due on the Due Date in the month in
which such Distribution Date occurs and which is received prior to the related
Determination Date (or in the case of any Monthly Covered Amount, the related
Remittance Date) and (B) all Periodic Advances and payments of Compensating
Interest made by the Servicer and Distribution Date deposited to the Servicer
Custodial Account pursuant to Section 3.08(b)(vii); (ii) all Liquidation
Proceeds received on the Mortgage Loans during the preceding calendar month and
deposited to the Servicer Custodial Account pursuant to Section 3.08(b)(iii);
(iii) all Principal Prepayments (other than Total Covered Amounts) received on
the Mortgage Loans during the month preceding the month of such Distribution
Date and deposited to the Servicer Custodial Account pursuant to Section
3.08(b)(i) during such period and all Total Covered Amounts received and
deposited in the Servicer Custodial Account by the related Remittance Date; (iv)
in connection with Defective Mortgage Loans, as applicable, the aggregate of the
Repurchase Prices and Substitution Adjustment Amounts deposited on the related
Remittance Date pursuant to Section 3.08(b)(vi); (v) any other amounts in the
Servicer Custodial Account deposited therein pursuant to Sections 3.08(b)(iv),
(v) and (ix) in respect of such Distribution Date; (vi) any Reimbursement Amount
required to be included pursuant to Section 5.02(a); and (vii) any Non-PO
Recovery with respect to such Distribution Date over (b) any (i) amounts
permitted to be withdrawn from the Servicer Custodial Account pursuant to
clauses (i) through (vii), inclusive, of Section 3.11(a) and (ii) amounts
permitted to be withdrawn from the Certificate Account pursuant to clauses (i)
and (ii) of Section 3.11(b).
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate Stated Principal Balance of all Mortgage Loans that were Outstanding
Mortgage Loans immediately following the Due Date in the month preceding the
month in which such Distribution Date occurs.
Pool Stated Principal Balance (Non-PO Portion): As to any
Distribution Date, the sum for each Mortgage Loan of the product of (a) the
Non-PO Percentage of such Mortgage Loan and (b) the Stated Principal Balance of
such Mortgage Loan that was an Outstanding Mortgage Loan immediately following
the Due Date in the month preceding the month in which such Distribution Date
occurs.
Preference Amount: Any amount previously distributed to a Class A-1
Certificateholder on the Class A-1 Certificates, which would have been covered
under the Policy as a Deficiency Amount, that is recoverable and sought to be
recovered as a voidable preference by a trustee in bankruptcy pursuant to the
United States Bankruptcy Code (11 U.S.C.), as amended from time to time, in
accordance with a final nonappealable order of a court or other body exercising
jurisdiction in an insolvency proceeding by or against the Trust, to the effect
that a Holder or the Trustee, as applicable, is required to return or repay all
or any portion of a Preference Amount.
Premium Distribution Amount: As to any Distribution Date, an amount
equal to the sum of (i) the Premium Payment and (ii) any Premium Unpaid
Shortfall.
Premium Mortgage Loan: A Mortgage Loan with a Net Mortgage Interest
Rate as of the Cut-off Date that is equal to or greater than 5.750% per annum.
Premium Payment: For any Distribution Date, the product of 1/12th of
0.09% and the Class Certificate Balance of the Class A-1 Certificates for such
Distribution Date prior to any distributions therein.
Premium Shortfall: For any Distribution Date, the amount by which
the Premium Payment exceeds the amount of premium actually distributed to
Assured Guaranty on such Distribution Date pursuant to clause (i) of the
definition of Premium Distribution Amount.
Premium Unpaid Shortfall: As to any Distribution Date, the amount by
which the aggregate Premium Shortfalls on prior Distribution Dates exceeds the
amount of premium actually distributed to Assured Guaranty on such prior
Distribution Dates pursuant to clause (ii) of the definition of Premium
Distribution Amount.
Prepayment Interest Shortfall: As to any Distribution Date and each
Mortgage Loan subject to a Principal Prepayment received during the calendar
month preceding such Distribution Date, the amount, if any, by which one month's
interest at the related Mortgage Interest Rate (net of the Servicing Fee) on
such Principal Prepayment exceeds the amount of interest paid in connection with
such Principal Prepayment.
Primary Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage Loan,
in each case issued by an insurer acceptable to FNMA or FHLMC.
Principal Only Certificates: Any Class of Certificates entitled to
distributions of principal, but to no distributions of interest. The Class A-6
and Class 30-PO Certificates are the only Principal Only Certificates.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan (other than Liquidation Proceeds) which is received in advance
of its scheduled Due Date and is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment, including the principal portion of any
Total Covered Amount.
Principal Prepayment in Full: Any Principal Prepayment of the entire
principal balance of a Mortgage Loan.
Priority Amount: As to any Distribution Date, the lesser of (i) the
sum of the Class Certificate Balances of the Class A-7 and Class A-8
Certificates and (ii) the product of (a) the Non-PO Principal Amount, (b) the
Shift Percentage and (c) the Priority Percentage.
Priority Percentage: As to any Distribution Date, (i) the sum of the
Class Certificate Balances of the Class A-7 and Class A-8 Certificates divided
by (ii) the Pool Stated Principal Balance (Non-PO Portion).
Private Certificates: The Class B-4, Class B-5 and Class B-6
Certificates.
Pro Rata Share: As to any Distribution Date and any Class of Class B
Certificates that is not a Restricted Class, the portion of the Subordinate
Principal Distribution Amount allocable to such Class, equal to the product of
the Subordinate Principal Distribution Amount 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 B Certificates that are not Restricted Classes. The Pro Rata Share
of a Restricted Class shall be 0%.
Qualified Appraiser: An appraiser of a Mortgaged Property duly
appointed by the originator of the related Mortgage Loan, who had no interest,
direct or indirect, in such Mortgaged Property or in any loan made on the
security thereof, whose compensation is not affected by the approval or
disapproval of the related Mortgage Loan and who met the minimum qualifications
of FNMA or FHLMC.
Rate Determination Date: As to any Class of LIBOR Certificates, the
second LIBOR Business Day prior to the beginning of the applicable Interest
Accrual Period for such Class and such Distribution Date.
Rating Agency: Each of Fitch and Xxxxx'x. If either such
organization or a successor is no longer in existence, "Rating Agency" shall be
such nationally recognized statistical rating organization, or other comparable
Person, as is designated by the Depositor, notice of which designation shall be
given to the Trustee and Assured Guaranty. References herein to a given rating
or rating category of a Rating Agency shall mean such rating category without
giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an
amount as of the date of such liquidation, equal to (i) the unpaid principal
balance of the Liquidated Mortgage Loan as of the date of such liquidation, plus
(ii) interest at the Net Mortgage Interest Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any, received during
the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Net Mortgage Interest Rate and to principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan that has become the
subject of a Deficient Valuation, if the principal amount due under the related
Mortgage Note has been reduced, the difference between the principal balance of
the Mortgage Loan outstanding immediately prior to such Deficient Valuation and
the principal balance of the Mortgage Loan as reduced by the Deficient
Valuation. With respect to each Mortgage Loan that has become the subject of a
Debt Service Reduction and any Distribution Date, the amount, if any, by which
the principal portion of the related Monthly Payment has been reduced.
Record Date: The last day of the month (or, if such day is not a
Business Day, the preceding Business Day) preceding the month of the related
Distribution Date.
Recovery: Any amount received on a Mortgage Loan subsequent to such
Mortgage Loan being determined to be a Liquidated Mortgage Loan.
Refinance Mortgage Loan: Any Mortgage Loan the proceeds of which
were not used to purchase the related Mortgaged Property.
Regular Certificates: As defined in the Preliminary Statement
hereto.
Reimbursement Amount: As defined in Section 2.04.
Relief Act: The Servicemembers Civil Relief Act, as it may be
amended from time to time.
Relief Act Reduction: With respect to any Distribution Date, for any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act or comparable state legislation, the amount,
if any, by which (i) interest collectible on such Mortgage Loan for the most
recently ended calendar month is less than (ii) interest accrued pursuant to the
terms of the Mortgage Note on the same principal amount and for the same period
as the interest collectible on such Mortgage Loan for the most recently ended
calendar month.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code. "The REMIC" means the REMIC constituted by
the Trust Estate. None of the Reserve Fund, the Rounding Account, the Policy or
the Policy Payment Account will be an asset of the REMIC.
REMIC Certificate Maturity Date: The "latest possible maturity date"
of the Regular Certificates as that term is defined in Section 2.07.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Section 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time, as well as provisions of applicable state laws.
Remittance Date: As to any Distribution Date, by 2:00 p.m. Eastern
time on the Business Day immediately preceding such Distribution Date.
REO Disposition Period: As defined in Section 3.14.
REO Proceeds: Proceeds, net of any related expenses of the Servicer,
received in respect of any REO Property (including, without limitation, proceeds
from the rental of the related Mortgaged Property) which are received prior to
the final liquidation of such Mortgaged Property.
REO Property: A Mortgaged Property acquired by the Servicer on
behalf of the Trust through foreclosure or deed-in-lieu of foreclosure in
connection with a defaulted Mortgage Loan.
Repurchase Price: As to any Defective Mortgage Loan repurchased on
any date pursuant to Section 2.02 or 2.04, an amount equal to the sum of (i) the
unpaid principal balance thereof and (ii) the unpaid accrued interest thereon at
the applicable Mortgage Interest Rate from the Due Date to which interest was
last paid by the Mortgagor to the first day of the month following the month in
which such Mortgage Loan became eligible to be repurchased.
Request for Release: The Request for Release submitted by the
Servicer to the Trustee or the Custodian on behalf of the Trustee, substantially
in the form of Exhibit E.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to time under this
Agreement in respect of such Mortgage Loan.
Reserve Fund: The separate non-interest bearing trust account
established with the Trustee and maintained by the Trustee pursuant to Section
5.11 for the benefit of the Class A-1 Certificateholders. The Reserve Fund shall
be an Eligible Account.
Reserve Withdrawal: With respect to any Distribution Date, the
lesser of (a) an amount on deposit in the Reserve Fund and (b) the amount of
Non-Supported Interest Shortfalls allocated to the Class A-1 Certificates.
Residual Certificate: The Class A-R Certificate.
Responsible Officer: When used with respect to the Trustee, any
officer of the Corporate Trust Department of the Trustee, including any Senior
Vice President, any Vice President, any Assistant Vice President, any Assistant
Secretary, any Trust Officer or Assistant Trust Officer, or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers and having responsibility for the
administration of this Agreement.
Restricted Classes: As defined in Section 5.02(d).
Rounding Account: As defined in Section 3.23.
Rounding Amount: As defined in Section 3.23.
Seller: Bank of America or its successor in interest, as seller of
the Mortgage Loans under the Mortgage Loan Purchase Agreement.
Senior Certificates: Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6, Class A-7, Class A-8, Class A-R, Class 30-IO and Class
30-PO Certificates.
Senior Credit Support Depletion Date: The date on which the
aggregate Class Certificate Balance of the Subordinate Certificates is reduced
to zero.
Senior Percentage: With respect to any Distribution Date, the
percentage, carried six places rounded up, obtained by dividing (i) the
aggregate Class Certificate Balance of the Senior Certificates immediately prior
to such Distribution Date, by (ii) the Pool Stated Principal Balance (Non-PO
Portion) immediately prior to such Distribution Date.
Senior Prepayment Percentage: For any Distribution Date during the
five years beginning on the first Distribution Date, 100%. The Senior Prepayment
Percentage for any Distribution Date occurring on or after the fifth anniversary
of the first Distribution Date will, except as provided herein, be as follows:
for any Distribution Date in the first year thereafter, the Senior Percentage
plus 70% of the Subordinate Percentage for such Distribution Date; for any
Distribution Date in the second year thereafter, the Senior Percentage plus 60%
of the Subordinate Percentage for such Distribution Date; for any Distribution
Date in the third year thereafter, the Senior Percentage plus 40% of the
Subordinate Percentage for such Distribution Date; for any Distribution Date in
the fourth year thereafter, the Senior Percentage plus 20% of the Subordinate
Percentage for such Distribution Date; and for any Distribution Date in the
fifth or later years thereafter, the Senior Percentage for such Distribution
Date, unless on any of the foregoing Distribution Dates the Senior Percentage
exceeds the initial Senior Percentage, in which case the Senior Prepayment
Percentage 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,
the sum of (i) the Senior Percentage 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 (ii) the Senior Prepayment
Percentage of (1) the applicable Non-PO Percentage of the amounts described in
clauses (i) (e) and (f) and (2) the amount described in clause (ii) of the
definition of "Non-PO Principal Amount" for such Distribution Date.
Senior Step Down Conditions: As of any Distribution Date as to which
any decrease in the Senior Prepayment Percentage applies, (i) the outstanding
principal balance of all Mortgage Loans (including, for this purpose, any
Mortgage Loans in foreclosure, any REO Property and any Mortgage Loan for which
the Mortgagor has filed for bankruptcy after the Closing Date) delinquent 60
days or more (averaged over the preceding six-month period), as a percentage of
the aggregate Class Certificate Balance of the Subordinate Certificates, is not
equal to or greater than 50% or (ii) cumulative Realized Losses with respect to
the Mortgage Loans as of the applicable Distribution Date do not exceed the
percentages of the Original Subordinate Class Certificate Balance set forth
below:
--------------------------------------------------------------------------------
Percentage of Original Subordinate
Distribution Date Occurring Class Certificate Balance
--------------------------------------------------------------------------------
January 2011 through December 2011 30%
January 2012 through December 2012 35%
January 2013 through December 2013 40%
January 2014 through December 2014 45%
January 2015 and thereafter 50%
--------------------------------------------------------------------------------
Servicer: Bank of America or its successor in interest, in its
capacity as servicer of the Mortgage Loans, or any successor servicer appointed
as herein provided.
Servicer Advance Date: As to any Distribution Date, 11:30 a.m.,
Eastern time, on the Business Day immediately preceding such Distribution Date.
Servicer Custodial Account: The separate Eligible Account or
Accounts created and maintained by the Servicer pursuant to Section 3.08(b).
Servicer Custodial Account Reinvestment Income: For each
Distribution Date, all income and gains net of any losses realized since the
preceding Distribution Date from Permitted Investments of funds in the Servicer
Custodial Account.
Servicer's Certificate: The monthly report required by Section 4.01.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by the Servicer of its
servicing obligations, including, but not limited to (i) the preservation,
restoration and protection of a Mortgaged Property, (ii) expenses reimbursable
to the Servicer pursuant to Section 3.14 and any enforcement or judicial
proceedings, including foreclosures, (iii) the management and liquidation of any
REO Property and (iv) compliance with the obligations under Section 3.12.
Servicing Compensation: With respect to each Distribution Date, the
sum of (i) the aggregate Servicing Fee for such Distribution Date subject to
reduction as provided in Section 3.17, (ii) any Ancillary Income, (iii) Excess
Proceeds for the preceding month and (iv) the Servicer Custodial Account
Reinvestment Income for such Distribution Date.
Servicing Fee: With respect to each Mortgage Loan and Distribution
Date, the amount of the fee payable to the Servicer, which shall, for such
Distribution Date, be equal to one-twelfth of the product of the Servicing Fee
Rate with respect to such Mortgage Loan and the Stated Principal Balance of such
Mortgage Loan. Such fee shall be payable monthly, computed on the basis of the
same Stated Principal Balance and period respecting which any related interest
payment on a Mortgage Loan is computed. The Servicer's right to receive the
Servicing Fee is limited to, and payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds and
other proceeds, to the extent permitted by Section 3.11) of related Monthly
Payments collected by the Servicer, or as otherwise provided under Section 3.11.
Servicing Fee Rate: With respect to each Mortgage Loan, 0.250% per
annum.
Servicing File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit J hereto, and any additional documents required to be
added to the Servicing File pursuant to the Agreement.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished to the Trustee by the
Servicer, as such list may from time to time be amended.
Servicing Transfer Costs: All reasonable costs and expenses incurred
by the Trustee in connection with the transfer of servicing from a predecessor
servicer, including, without limitation, any costs or expenses associated with
the complete transfer of all servicing data and the completion, correction or
manipulation of such servicing data as may be required by the Trustee to correct
any errors or insufficiencies in the servicing data or otherwise to enable the
Trustee to service the Mortgage Loans properly and effectively.
Shift Percentage: As to any Distribution Date, the percentage
indicated below:
--------------------------------------------------------------------------------
Distribution Date Occurring In Shift Percentage
--------------------------------------------------------------------------------
January 2006 through December 2010 0%
January 2011 through December 2011 30%
January 2012 through December 2012 40%
January 2013 through December 2013 60%
January 2014 through December 2014 80%
January 2015 and thereafter 100%
--------------------------------------------------------------------------------
Similar Law: As defined in Section 6.02(e).
Special Retail Certificates: The Class A-1 Certificates.
Stated Principal Balance: As to any Mortgage Loan and date, the
unpaid principal balance of such Mortgage Loan as of the Due Date immediately
preceding such date as specified in the amortization schedule at the time
relating thereto (before any adjustment to such amortization schedule by reason
of any moratorium or similar waiver or grace period) after giving effect to any
previous partial Principal Prepayments and Liquidation Proceeds allocable to
principal (other than with respect to any Liquidated Mortgage Loan) and to the
payment of principal due on such Due Date and irrespective of any delinquency in
payment by the related Mortgagor, and after giving effect to any Deficient
Valuation.
Subordinate Certificates: The Class B Certificates.
Subordinate Percentage: As of any Distribution Date, 100% minus the
Senior Percentage for such Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date, 100%
minus the Senior Prepayment Percentage for such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the sum of (i) the Subordinate Percentage
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 (ii) the Subordinate Prepayment Percentage of (1) the applicable Non-PO
Percentage of the amounts described in clauses (i) (e) and (f) and (2) the
amount described in clause (ii) of the definition of "Non-PO Principal Amount"
for such Distribution Date.
Subservicer: Any Person with which the Servicer has entered into a
Subservicing Agreement and which satisfies the requirements set forth therein.
Subservicing Agreement: Any subservicing agreement (which, in the
event the Subservicer is an affiliate of the Servicer, need not be in writing)
between the Servicer and any Subservicer relating to servicing and/or
administration of certain Mortgage Loans as provided in Section 3.02.
Substitute Mortgage Loan: A Mortgage Loan substituted for a
Defective Mortgage Loan which must, on the date of such substitution (i) have a
Stated Principal Balance, after deduction of the principal portion of the
Monthly Payment due in the month of substitution, not in excess of, and not more
than 10% less than, the Stated Principal Balance of the Defective Mortgage Loan;
(ii) have a Net Mortgage Interest Rate equal to that of the Defective Mortgage
Loan; (iii) have a Loan-to-Value Ratio not higher than that of the Defective
Mortgage Loan; (iv) have a remaining term to maturity not greater than (and not
more than one year less than) that of the Defective Mortgage Loan; and (v)
comply with each Mortgage Loan representation and warranty set forth in this
Agreement relating to the Defective Mortgage Loan. More than one Substitute
Mortgage Loan may be substituted for a Defective Mortgage Loan if such
Substitute Mortgage Loans meet the foregoing attributes in the aggregate.
Substitution Adjustment Amount: As defined in Section 2.02.
Tax Matters Person: Any person designated as "tax matters person" in
accordance with Section 5.06 and the manner provided under Treasury Regulation
ss. 1.860F-4(d) and Treasury Regulation ss. 301.6231(a)(7)-1.
Telerate page 3750: As defined in Section 5.09.
Total Covered Amount: As defined in the Mortgage Loan Purchase
Agreement.
Treasury Regulations: The final and temporary regulations
promulgated under the Code by the U.S. Department of the Treasury.
Trust: The trust created by this Agreement.
Trust Estate: The corpus of the Trust created to the extent
described herein, consisting of the Mortgage Loans, such assets as shall from
time to time be identified as deposited in the Servicer Custodial Account or the
Certificate Account, in accordance with this Agreement, REO Property, the
Primary Insurance Policies, any other Required Insurance Policy, the right to
receive any BPP Mortgage Loan Payment, the Reserve Fund, the Policy Payment
Account, the rights of the Trustee under the Policy, amounts in the Rounding
Accounts and the right to receive amounts, if any, payable on behalf of any
Mortgagor from the Buy-Down Account relating to any Buy-Down Mortgage Loan. The
Buy-Down Account shall not be part of the Trust Estate.
Trustee: Xxxxx Fargo Bank, N.A., and any successors-in-interest and,
if a successor trustee is appointed hereunder, such successor, as trustee.
Trustee Fee: As to any Distribution Date, an amount equal to
one-twelfth of the Trustee Fee Rate multiplied by the aggregate Stated Principal
Balance of the Mortgage Loans immediately following the Due Date in the month
preceding the month in which such Distribution Date occurs.
Trustee Fee Rate: With respect to each Mortgage Loan, 0.0065% per
annum.
Underwriting Guidelines: The underwriting guidelines of Bank of
America.
U.S. Person: A citizen or resident of the United States, a
corporation or partnership (unless, in the case of a partnership, Treasury
Regulations are adopted that provide otherwise) created or organized in or under
the laws of the United States, any state thereof or the District of Columbia,
including an entity treated as a corporation or partnership for federal income
tax purposes, an estate whose income is subject to United States federal income
tax regardless of its source, or a trust if a court within the United States is
able to exercise primary supervision over the administration of such trust, and
one or more such U.S. Persons have the authority to control all substantial
decisions of such trust (or, to the extent provided in applicable Treasury
Regulations, certain trusts in existence on August 20, 1996 which are eligible
to elect to be treated as U.S. Persons).
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Holders of
the Class 30-IO Certificates, (b) 1% of all Voting Rights shall be allocated to
the Holder of the Residual Certificate and (c) the remaining Voting Rights shall
be allocated among Holders of the remaining Classes of Certificates in
proportion to the Certificate Balances of their respective Certificates on such
date.
For so long as no Assured Guaranty Default has occurred and is
continuing, Assured Guaranty shall be entitled to exercise on behalf of the
Holders of the Class A-1 Certificates the Voting Rights of such Class unless
Assured Guaranty has consented in writing to the exercise of such Voting Rights
by such Holders.
Section 1.02 Interest Calculations. All calculations of interest
will be made on a 360-day year consisting of twelve 30-day months. All dollar
amounts calculated hereunder shall be rounded to the nearest 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, including all
interest and principal received on or with respect to the Mortgage Loans (other
than payments of principal and interest due and payable on the Mortgage Loans on
or before the Cut-off Date). The foregoing sale, transfer, assignment and set
over does not and is not intended to result in a creation of an assumption by
the Trustee of any obligation of the Depositor or any other Person in connection
with the Mortgage Loans or any agreement or instrument relating thereto, except
as specifically set forth herein. In addition, the Depositor, concurrently with
the execution and delivery hereof, hereby sells, transfers, assigns, sets over
and otherwise conveys to the Trustee on behalf of the Trust for the benefit of
the Certificateholders, without recourse, the Depositor's rights to receive any
BPP Mortgage Loan Payment. It is agreed and understood by the parties hereto
that it is not intended that any mortgage loan be included in the Trust that is
a "High-Cost Home Loan" as defined in any of (i) the New Jersey Home Ownership
Act, effective November 27, 2003, (ii) the New Mexico Home Loan Protection Act,
effective January 1, 2004, (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
shall deliver or cause to be delivered to the Trustee, for the benefit of the
Certificateholders, the following documents or instruments with respect to each
Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed by manual or facsimile
signature in the following form: "Pay to the order of Xxxxx Fargo Bank,
N.A., as trustee for the holders of the Banc of America Mortgage
Securities, Inc. Mortgage Pass-Through Certificates, Series 2005-12,
without recourse," with all necessary intervening endorsements showing a
complete chain of endorsement from the originator to the Trustee (each
such endorsement being sufficient to transfer all right, title and
interest of the party so endorsing, as noteholder or assignee thereof, in
and to that Mortgage Note);
(ii) except as provided below, the original recorded Mortgage with
evidence of a recording thereon, or if any such Mortgage has not been
returned from the applicable recording office or has been lost, or if such
public recording office retains the original recorded Mortgage, a copy of
such Mortgage certified by the Depositor as being a true and correct copy
of the Mortgage;
(iii) subject to the provisos at the end of this paragraph, a duly
executed Assignment of Mortgage to "Xxxxx Fargo Bank, N.A., as trustee for
the holders of the Banc of America Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 2005-12" (which may be included in a
blanket assignment or assignments), together with, except as provided
below, originals of all interim recorded assignments of such mortgage or a
copy of such interim assignment certified by the Depositor as being a true
and complete copy of the original recorded intervening assignments of
Mortgage (each such assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and transfer to
the assignee thereof, under the Mortgage to which the assignment relates);
provided that, if the related Mortgage has not been returned from the
applicable public recording office, such Assignment of Mortgage may
exclude the information to be provided by the recording office; and
provided, further, if the related Mortgage has been recorded in the name
of Mortgage Electronic Registration Systems, Inc. ("MERS") or its
designee, no Assignment of Mortgage in favor of the Trustee will be
required to be prepared or delivered and instead, the Servicer shall take
all actions as are necessary to cause the Trust to be shown as the owner
of the related Mortgage Loan on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages
maintained by MERS;
(iv) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon, if any;
(v) any of (A) the original or duplicate original mortgagee title
insurance policy and all riders thereto, (B) a title search showing no
lien (other than standard exceptions of the type described in Section 2.04
(viii)) on the Mortgaged Property senior to the lien of the Mortgage or
(C) an opinion of counsel of the type customarily rendered in the
applicable jurisdiction in lieu of a title insurance policy;
(vi) the original of any guarantee executed in connection with the
Mortgage Note;
(vii) for each Mortgage Loan, if any, which is secured by a
residential long-term lease, a copy of the lease with evidence of
recording indicated thereon, or, if the lease is in the process of being
recorded, a photocopy of the lease, certified by an officer of the
respective prior owner of such Mortgage Loan or by the applicable title
insurance company, closing/settlement/escrow agent or company or closing
attorney to be a true and correct copy of the lease transmitted for
recordation;
(viii) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage; and
(ix) for each Mortgage Loan secured by Co-op Shares, the originals
of the following documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate
UCC financing statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the Trustee with
evidence of recording thereon (or in a form suitable for
recordation).
provided, however, that on the Closing Date, with respect to item (iii), the
Depositor has delivered to the Trustee a copy of such Assignment of Mortgage in
blank and has caused the Servicer to retain the completed Assignment of Mortgage
for recording as described below, unless such Mortgage has been recorded in the
name of MERS or its designee. In addition, if the Depositor is unable to deliver
or cause the delivery of any original Mortgage Note due to the loss of such
original Mortgage Note, the Depositor may deliver a copy of such Mortgage Note,
together with a lost note affidavit, and shall thereby be deemed to have
satisfied the document delivery requirements of this Section 2.01(b).
If in connection with any Mortgage Loans, the Depositor cannot
deliver (A) the Mortgage, (B) all interim recorded assignments, (C) all
assumption, modification, consolidation or extension agreements, if any, or (D)
the lender's title policy, if any (together with all riders thereto), satisfying
the requirements of clause (ii), (iii), (iv) or (v) above, respectively,
concurrently with the execution and delivery hereof because such document or
documents have not been returned from the applicable public recording office in
the case of clause (ii), (iii) or (iv) above, or because the title policy, if
any, has not been delivered to either the Servicer or the Depositor by the
applicable title insurer in the case of clause (v) above, the Depositor shall
promptly deliver or cause to be delivered to the Trustee or the Custodian on
behalf of the Trustee, in the case of clause (ii), (iii) or (iv) above, such
Mortgage, such interim assignment or such assumption, modification,
consolidation or extension agreement, as the case may be, with evidence of
recording indicated thereon upon receipt thereof from the public recording
office, but in no event shall any such delivery of any such documents or
instruments be made later than one year following the Closing Date, unless, in
the case of clause (ii), (iii) or (iv) above, there has been a continuing delay
at the applicable recording office or, in the case of clause (v), there has been
a continuing delay at the applicable insurer and the Depositor has delivered the
Officer's Certificate to such effect to the Trustee. The Depositor shall forward
or cause to be forwarded to the Trustee (1) from time to time additional
original documents evidencing an assumption or modification of a Mortgage Loan
and (2) any other documents required to be delivered by the Depositor or the
Servicer to the Trustee or the Custodian on the Trustee's behalf. In the event
that the original Mortgage is not delivered and in connection with the payment
in full of the related Mortgage Loan the public recording office requires the
presentation of a "lost instruments affidavit and indemnity" or any equivalent
document, because only a copy of the Mortgage can be delivered with the
instrument of satisfaction or reconveyance, the Servicer shall prepare, execute
and deliver or cause to be prepared, executed and delivered, on behalf of the
Trust, such a document to the public recording office.
As promptly as practicable subsequent to such transfer and
assignment, and in any event, within 30 days thereafter, the Servicer shall
(except for any Mortgage which has been recorded in the name of MERS or its
designee) (I) cause each Assignment of Mortgage to be in proper form for
recording in the appropriate public office for real property records within 30
days of the Closing Date and (II) at the Depositor's expense, cause to be
delivered for recording in the appropriate public office for real property
records the Assignments of the Mortgages to the Trustee, except that, with
respect to any Assignment of a Mortgage as to which the Servicer has not
received the information required to prepare such assignment in recordable form,
the Servicer's obligation to do so and to deliver the same for such recording
shall be as soon as practicable after receipt of such information and in any
event within 30 days after the receipt thereof and, no recording of an
Assignment of Mortgage will be required in a state if either (i) the Depositor
furnishes to the Trustee an unqualified Opinion of Counsel reasonably acceptable
to the Trustee to the effect that recordation of such assignment is not
necessary under applicable state law to preserve the Trustee's interest in the
related Mortgage Loan against the claim of any subsequent transferee of such
Mortgage Loan or any successor to, or creditor of, the Depositor or the
originator of such Mortgage Loan or (ii) the recordation of an Assignment of
Mortgage in such state is not required by either Rating Agency in order to
obtain the initial ratings on the Certificates on the Closing Date. Set forth on
Exhibit L attached hereto is a list of all states where recordation is required
by either Rating Agency to obtain the initial ratings of the Certificates. The
Trustee may rely and shall be protected in relying upon the information
contained in such Exhibit L.
In the case of Mortgage Loans that have been prepaid in full as of
the Closing Date, the Depositor, in lieu of delivering the above documents to
the Trustee, or the Custodian on the Trustee's behalf, will cause the Servicer
to deposit in the Servicer Custodial Account the portion of such payment that is
required to be deposited in the Servicer Custodial Account pursuant to Section
3.08.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.
Subject to the provisions of the following paragraph, the Trustee declares that
it, or the Custodian as its agent, will hold the documents referred to in
Section 2.01 and the other documents delivered to it constituting the Mortgage
Files, and that it will hold such other assets as are included in the Trust
Estate, in trust for the exclusive use and benefit of all present and future
Certificateholders. Upon execution and delivery of this document, the Trustee
shall deliver or cause the Custodian to deliver to the Depositor, Assured
Guaranty, the Trustee and the Servicer a certification in the form of Exhibit M
hereto (the "Initial Certification") to the effect that, except as may be
specified in a list of exceptions attached thereto, it has received the original
Mortgage Note relating to each of the Mortgage Loans listed on the Mortgage Loan
Schedule.
Within 90 days after the execution and delivery of this Agreement,
the Trustee shall review, or cause the Custodian to review, the Mortgage Files
in its possession, and shall deliver to the Depositor, the Trustee, Assured
Guaranty and the Servicer a certification in the form of Exhibit N hereto (the
"Final Certification") to the effect that, as to each Mortgage Loan listed in
the Mortgage Loan Schedule, except as may be specified in a list of exceptions
attached to such Final Certification, such Mortgage File contains all of the
items required to be delivered pursuant to Section 2.01(b).
If, in the course of such review, the Trustee or the Custodian finds
any document constituting a part of a Mortgage File which does not meet the
requirements of Section 2.01 or is omitted from such Mortgage File, the Trustee
shall promptly so notify the Servicer, Assured Guaranty and the Depositor, or
shall cause the Custodian to promptly so notify the Servicer, Assured Guaranty
and the Depositor. In performing any such review, the Trustee or the Custodian
may conclusively rely on the purported genuineness of any such document and any
signature thereon. It is understood that the scope of the Trustee's or the
Custodian's review of the Mortgage Files is limited solely to confirming that
the documents listed in Section 2.01 have been received and further confirming
that any and all documents delivered pursuant to Section 2.01 appear on their
face to have been executed and relate to the Mortgage Loans identified in the
Mortgage Loan Schedule based solely upon the review of items (i) and (xi) in the
definition of Mortgage Loan Schedule. Neither the Trustee nor the Custodian
shall have any responsibility for determining whether any document is valid and
binding, whether the text of any assignment or endorsement is in proper or
recordable form, whether any document has been recorded in accordance with the
requirements of any applicable jurisdiction, or whether a blanket assignment is
permitted in any applicable jurisdiction. The Depositor hereby covenants and
agrees that it will promptly correct or cure such defect within 90 days from the
date it was so notified of such defect and, if the Depositor does not correct or
cure such defect within such period, the Depositor will either (a) substitute
for the related Mortgage Loan a Substitute Mortgage Loan, which substitution
shall be accomplished in the manner and subject to the conditions set forth
below or (b) purchase such Mortgage Loan from the Trustee at the Repurchase
Price for such Mortgage Loan; provided, however, that in no event shall such a
substitution occur more than two years from the Closing Date; provided, further,
that such substitution or repurchase shall occur within 90 days of when such
defect was discovered if such defect will cause the Mortgage Loan not to be a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code.
With respect to each Substitute Mortgage Loan the Depositor shall
deliver to the Trustee, for the benefit of the Certificateholders, the Mortgage
Note, the Mortgage, the related Assignment of Mortgage (except for any Mortgage
which has been recorded in the name of MERS or its designee), and such other
documents and agreements as are otherwise required by Section 2.01, with the
Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01. No
substitution is permitted to be made in any calendar month after the
Determination Date for such month. Monthly Payments due with respect to any such
Substitute Mortgage Loan in the month of substitution shall not be part of the
Trust Estate and will be retained by the Depositor. For the month of
substitution, distributions to Certificateholders will include the Monthly
Payment due for such month on any Defective Mortgage Loan for which the
Depositor has substituted a Substitute Mortgage Loan.
The Servicer shall amend the Mortgage Loan Schedule for the benefit
of the Certificateholders to reflect the removal of each Mortgage Loan that has
become a Defective Mortgage Loan and the substitution of the Substitute Mortgage
Loan or Loans and the Servicer shall deliver the amended Mortgage Loan Schedule
to the Trustee and the Custodian. Upon such substitution, each Substitute
Mortgage Loan shall be subject to the terms of this Agreement in all respects,
and the Depositor shall be deemed to have made to the Trustee with respect to
such Substitute Mortgage Loan, as of the date of substitution, the
representations and warranties made pursuant to Section 2.04. Upon any such
substitution and the deposit to the Servicer Custodial Account of any required
Substitution Adjustment Amount (as described in the next paragraph) and receipt
of a Request for Release, the Trustee shall release, or shall direct the
Custodian to release, the Mortgage File relating to such Defective Mortgage Loan
to the Depositor and shall execute and deliver at the Depositor's direction such
instruments of transfer or assignment prepared by the Depositor, in each case
without recourse, as shall be necessary to vest title in the Depositor, or its
designee, to the Trustee's interest in any Defective Mortgage Loan substituted
for pursuant to this Section 2.02.
For any month in which the Depositor substitutes one or more
Substitute Mortgage Loans for one or more Defective Mortgage Loans, the amount
(if any) by which the aggregate principal balance of all such Substitute
Mortgage Loans as of the date of substitution is less than the aggregate Stated
Principal Balance of all such Defective Mortgage Loans (after application of the
principal portion of the Monthly Payments due in the month of substitution) (the
"Substitution Adjustment Amount") plus an amount equal to the aggregate of any
unreimbursed Advances with respect to such Defective Mortgage Loans shall be
deposited into the Servicer Custodial Account by the Depositor on or before the
Remittance Date for the Distribution Date in the month succeeding the calendar
month during which the related Mortgage Loan is required to be purchased or
replaced hereunder.
The Trustee shall retain or shall cause the Custodian to retain
possession and custody of each Mortgage File in accordance with and subject to
the terms and conditions set forth herein. The Servicer shall promptly deliver
to the Trustee, upon the execution or, in the case of documents requiring
recording, receipt thereof, the originals of such other documents or instruments
constituting the Mortgage File as come into the Servicer's possession from time
to time.
It is understood and agreed that the obligation of the Depositor to
substitute for or to purchase any Mortgage Loan which does not meet the
requirements of Section 2.01 shall constitute the sole remedy respecting such
defect available to the Trustee and any Certificateholder against the Depositor.
The Trustee or the Custodian, on behalf of the Trustee, shall be
under no duty or obligation (i) to inspect, review or examine any such
documents, instruments, certificates or other papers to determine that they are
genuine, enforceable, or appropriate for the represented purpose or that they
are other than what they purport to be on their face or (ii) to determine
whether any Mortgage File should include any of the documents specified in
Section 2.01(b)(iv), (vi), (vii), (viii) and (ix). In connection with making the
certifications required hereunder, to the extent a title search or opinion of
counsel has been provided in lieu of a title policy for any Mortgage Loan, the
Trustee shall only be responsible for confirming that a title search or opinion
of counsel has been provided for such Mortgage Loan and shall not be deemed to
have certified that the content of such title search or opinion of counsel is
sufficient to meet the requirements of Section 2.01(b)(v).
Section 2.03 Representations, Warranties and Covenants of the
Servicer. The Servicer hereby makes the following representations and warranties
to the Depositor and the Trustee, as of the Closing Date:
(i) The Servicer is a national banking association duly organized,
validly existing, and in good standing under the federal laws of the
United States of America and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and in good
standing in each of the states where a Mortgaged Property is located if
the laws of such state require licensing or qualification in order to
conduct business of the type conducted by the Servicer. The Servicer has
power and authority to execute and deliver this Agreement and to perform
in accordance herewith; the execution, delivery and performance of this
Agreement (including all instruments of transfer to be delivered pursuant
to this Agreement) by the Servicer and the consummation of the
transactions contemplated hereby have been duly and validly authorized.
This Agreement, assuming due authorization, execution and delivery by the
other parties hereto, evidences the valid, binding and enforceable
obligation of the Servicer, subject to applicable law except as
enforceability may be limited by (A) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws affecting
the enforcement of creditors' rights generally or creditors of national
banks and (B) general principles of equity, whether enforcement is sought
in a proceeding in equity or at law. All requisite corporate action has
been taken by the Servicer to make this Agreement valid and binding upon
the Servicer in accordance with its terms.
(ii) No consent, approval, authorization or order is required for
the transactions contemplated by this Agreement from any court,
governmental agency or body, or federal or state regulatory authority
having jurisdiction over the Servicer is required or, if required, such
consent, approval, authorization or order has been or will, prior to the
Closing Date, be obtained.
(iii) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Servicer and will
not result in the breach of any term or provision of the charter or
by-laws of the Servicer or result in the breach of any term or provision
of, or conflict with or constitute a default under or result in the
acceleration of any obligation under, any agreement, indenture or loan or
credit agreement or other instrument to which the Servicer or its property
is subject, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Servicer or its property is
subject.
(iv) There is no action, suit, proceeding or investigation pending
or, to the best knowledge of the Servicer, threatened against the Servicer
which, either individually or in the aggregate, would result in any
material adverse change in the business, operations, financial condition,
properties or assets of the Servicer, or in any material impairment of the
right or ability of the Servicer to carry on its business substantially as
now conducted or which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action taken or to be taken in
connection with the obligations of the Servicer contemplated herein, or
which would materially impair the ability of the Servicer to perform under
the terms of this Agreement.
The representations and warranties made pursuant to this Section
2.03 shall survive delivery of the respective Mortgage Files to the Trustee for
the benefit of the Certificateholders.
Section 2.04 Representations and Warranties of the Depositor as to
the Mortgage Loans. The Depositor hereby represents and warrants to the Trustee
with respect to the Mortgage Loans or each Mortgage Loan, as the case may be, as
of the date hereof or such other date set forth herein that as of the Closing
Date:
(i) The information set forth in the Mortgage Loan Schedule is true
and correct in all material respects.
(ii) There are no delinquent taxes, ground rents, governmental
assessments, insurance premiums, leasehold payments, including assessments
payable in future installments or other outstanding charges affecting the
lien priority of the related Mortgaged Property.
(iii) The terms of the Mortgage Note and the Mortgage have not been
impaired, waived, altered or modified in any respect, except by written
instruments, recorded in the applicable public recording office if
necessary to maintain the lien priority of the Mortgage, and which have
been delivered to the Trustee; the substance of any such waiver,
alteration or modification has been approved by the insurer under the
Primary Insurance Policy, if any, the title insurer, to the extent
required by the related policy, and is reflected on the Mortgage Loan
Schedule. No instrument of waiver, alteration or modification has been
executed, and no Mortgagor has been released, in whole or in part, except
in connection with an assumption agreement approved by the insurer under
the Primary Insurance Policy, if any, the title insurer, to the extent
required by the policy, and which assumption agreement has been delivered
to the Trustee.
(iv) The Mortgage Note and the Mortgage are not subject to any right
of rescission, set-off, counterclaim or defense, including the defense of
usury, nor will the operation of any of the terms of the Mortgage Note and
the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part, or
subject to any right of rescission, set-off, counterclaim or defense,
including the defense of usury and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto.
(v) All buildings upon the Mortgaged Property are insured by an
insurer generally acceptable to prudent mortgage lending institutions
against loss by fire, hazards of extended coverage and such other hazards
as are customary in the area the Mortgaged Property is located, pursuant
to insurance policies conforming to the requirements of Customary
Servicing Procedures and this Agreement. All such insurance policies
contain a standard mortgagee clause naming the originator of the Mortgage
Loan, its successors and assigns as mortgagee and all premiums thereon
have been paid. If the Mortgaged Property is in an area identified on a
flood hazard map or flood insurance rate map issued by the Federal
Emergency Management Agency as having special flood hazards (and such
flood insurance has been made available), a flood insurance policy meeting
the requirements of the current guidelines of the Federal Insurance
Administration is in effect which policy conforms to the requirements of
FNMA or FHLMC. The Mortgage obligates the Mortgagor thereunder to maintain
all such insurance at the Mortgagor's cost and expense, and on the
Mortgagor's failure to do so, authorizes the holder of the Mortgage to
maintain such insurance at Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor.
(vi) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth in lending, real estate
settlement procedures, consumer credit protections, all applicable
predatory and abusive lending laws, equal credit opportunity or disclosure
laws applicable to the origination and servicing of Mortgage Loan have
been complied with.
(vii) The Mortgage has not been satisfied, canceled, subordinated or
rescinded, in whole or in part (other than as to Principal Prepayments in
full which may have been received prior to the Closing Date), and the
Mortgaged Property has not been released from the lien of the Mortgage, in
whole or in part, nor has any instrument been executed that would effect
any such satisfaction, cancellation, subordination, rescission or release.
(viii) The Mortgage is a valid, existing and enforceable first lien
on the Mortgaged Property, including all improvements on the Mortgaged
Property subject only to (A) the lien of current real property taxes and
assessments not yet due and payable, (B) covenants, conditions and
restrictions, rights of way, easements and other matters of the public
record as of the date of recording being acceptable to mortgage lending
institutions generally and specifically referred to in the lender's title
insurance policy delivered to the originator of the Mortgage Loan and
which do not adversely affect the Appraised Value of the Mortgaged
Property, (C) if the Mortgaged Property consists of Co-op Shares, any lien
for amounts due to the cooperative housing corporation for unpaid
assessments or charges or any lien of any assignment of rents or
maintenance expenses secured by the real property owned by the cooperative
housing corporation, and (D) other matters to which like properties are
commonly subject which do not materially interfere with the benefits of
the security intended to be provided by the Mortgage or the use,
enjoyment, value or marketability of the related Mortgaged Property. Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a
valid, existing and enforceable first lien and first priority security
interest on the property described therein and the Depositor has the full
right to sell and assign the same to the Trustee.
(ix) The Mortgage Note and the related Mortgage are genuine and each
is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms except as enforceability may be
limited by (A) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the enforcement
of the rights of creditors and (B) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law.
(x) All parties to the Mortgage Note and the Mortgage had legal
capacity to enter into the Mortgage Loan and to execute and deliver the
Mortgage Note and the Mortgage, and the Mortgage Note and the Mortgage
have been duly and properly executed by such parties.
(xi) The proceeds of the Mortgage Loan have been fully disbursed to
or for the account of the Mortgagor and there is no obligation for the
Mortgagee to advance additional funds thereunder and any and all
requirements as to completion of any on-site or off-site improvements and
as to disbursements of any escrow funds therefor have been complied with.
All costs, fees and expenses incurred in making or closing the Mortgage
Loan and the recording of the Mortgage have been paid, and the Mortgagor
is not entitled to any refund of any amounts paid or due to the Mortgagee
pursuant to the Mortgage Note or Mortgage.
(xii) To the best of the Depositor's knowledge, all parties which
have had any interest in the Mortgage Loan, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held and disposed of such interest, were) in compliance with any and all
applicable "doing business" and licensing requirements of the laws of the
state wherein the Mortgaged Property is located.
(xiii) (A) The Mortgage Loan is covered by an ALTA lender's title
insurance policy, acceptable to FNMA or FHLMC, issued by a title insurer
acceptable to FNMA or FHLMC and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring (subject to
the exceptions contained in (viii)(A) and (B) above) the Seller, its
successors and assigns as to the first priority lien of the Mortgage in
the original principal amount of the Mortgage Loan, (B) a title search has
been done showing no lien (other than the exceptions contained in
(viii)(A) and (B) above) on the related Mortgaged Property senior to the
lien of the Mortgage or (C) in the case of any Mortgage Loan secured by a
Mortgaged Property located in a jurisdiction where such policies are
generally not available, an opinion of counsel of the type customarily
rendered in such jurisdiction in lieu of title insurance is instead
received. For each Mortgage Loan covered by a title insurance policy (x)
the Depositor is the sole insured of such lender's title insurance policy,
and such lender's title insurance policy is in full force and effect and
will be in full force and effect upon the consummation of the transactions
contemplated by this Agreement and (y) no claims have been made under such
lender's title insurance policy, and the Depositor has not done, by act or
omission, anything which would impair the coverage of such lender's title
insurance policy.
(xiv) There is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note and no event
which, with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a default, breach, violation or
event of acceleration, and the Seller has not waived any default, breach,
violation or event of acceleration.
(xv) As of the date of origination of the Mortgage Loan, there had
been no mechanics' or similar liens or claims filed for work, labor or
material (and no rights are outstanding that under law could give rise to
such lien) affecting the related Mortgaged Property which are or may be
liens prior to, or equal or coordinate with, the lien of the related
Mortgage.
(xvi) All improvements which were considered in determining the
Appraised Value of the related Mortgaged Property lay wholly within the
boundaries and building restriction lines of the Mortgaged Property, and
no improvements on adjoining properties encroach upon the Mortgaged
Property.
(xvii) The Mortgage Loan was originated by a savings and loan
association, savings bank, commercial bank, credit union, insurance
company, or similar institution which is supervised and examined by a
federal or state authority, or by a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to sections 203 and 211 of the
National Housing Act.
(xviii) Principal payments on the Mortgage Loan commenced no more
than sixty days after the proceeds of the Mortgaged Loan were disbursed.
The Mortgage Loans are 10 to 30-year fixed rate mortgage loans having an
original term to maturity of not more than 30 years, with interest payable
in arrears on the first day of the month. Each Mortgage Note requires a
monthly payment which is sufficient to fully amortize the original
principal balance over the original term thereof and to pay interest at
the related Mortgage Interest Rate. The Mortgage Note does not permit
negative amortization.
(xix) There is no proceeding pending or, to the Depositor's
knowledge, threatened for the total or partial condemnation of the
Mortgaged Property. The Mortgaged Property is in good repair and is
undamaged by waste, fire, earthquake or earth movement, windstorm, flood,
tornado or other casualty, so as to affect adversely the value of the
Mortgaged Property as security for the Mortgage Loan or the use for which
the premises were intended.
(xx) The Mortgage and related Mortgage Note contain customary and
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the realization against the Mortgaged Property
of the benefits of the security provided thereby, including (A) in the
case of a Mortgage designated as a deed of trust, by trustee's sale, and
(B) otherwise by judicial foreclosure. To the best of the Depositor's
knowledge, following the date of origination of the Mortgage Loan, the
Mortgaged Property has not been subject to any bankruptcy proceeding or
foreclosure proceeding and the Mortgagor has not filed for protection
under applicable bankruptcy laws. There is no homestead or other exemption
or right available to the Mortgagor or any other person which would
interfere with the right to sell the Mortgaged Property at a trustee's
sale or the right to foreclose the Mortgage.
(xxi) Other than any Borrowers Protection Plan(R) addendum to the
Mortgage Note of a BPP Mortgage Loan, the Mortgage Note and Mortgage are
on forms acceptable to FNMA or FHLMC.
(xxii) The Mortgage Note is not and has not been secured by any
collateral except the lien of the corresponding Mortgage on the Mortgaged
Property and the security interest of any applicable security agreement or
chattel mortgage referred to in (viii) above.
(xxiii) Each appraisal of the related Mortgaged Property, is in a
form acceptable to FNMA or FHLMC and such appraisal complies with the
requirements of FIRREA, and was made and signed, prior to the approval of
the Mortgage Loan application, by a Qualified Appraiser.
(xxiv) In the event the Mortgage constitutes a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves, and no fees or expenses are
or will become payable by the Trustee to the trustee under the deed of
trust, except in connection with a trustee's sale after default by the
Mortgagor.
(xxv) No Mortgage Loan is a graduated payment mortgage loan, no
Mortgage Loan has a shared appreciation or other contingent interest
feature, and no more than 0.46% (by Cut-off Date Principal Balance) of the
Mortgage Loans are Buy-Down Mortgage Loans.
(xxvi) The Mortgagor has received all disclosure materials required
by applicable law with respect to the making of mortgage loans of the same
type as the Mortgage Loan and rescission materials required by applicable
law if the Mortgage Loan is a Refinance Mortgage Loan.
(xxvii) Each Primary Insurance Policy to which any Mortgage Loan is
subject will be issued by an insurer acceptable to FNMA or FHLMC, which
insures that portion of the Mortgage Loan in excess of the portion of the
Appraised Value of the Mortgaged Property required by FNMA. All provisions
of such Primary Insurance Policy have been and are being complied with,
such policy is in full force and effect, and all premiums due thereunder
have been paid. Any Mortgage subject to any such Primary Insurance Policy
obligates the Mortgagor thereunder to maintain such insurance and to pay
all premiums and charges in connection therewith at least until
Loan-to-Value Ratio of such Mortgage Loan is reduced to less than 80%. The
Mortgage Interest Rate for the Mortgage Loan does not include any such
insurance premium.
(xxviii) To the best of the Depositor's knowledge as of the date of
origination of the Mortgage Loan, (A) the Mortgaged Property is lawfully
occupied under applicable law, (B) all inspections, licenses and
certificates required to be made or issued with respect to all occupied
portions of the Mortgaged Property and, with respect to the use and
occupancy of the same, including but not limited to certificates of
occupancy, have been made or obtained from the appropriate authorities and
(C) no improvement located on or part of the Mortgaged Property is in
violation of any zoning law or regulation.
(xxix) The Assignment of Mortgage (except with respect to any
Mortgage that has been recorded in the name of MERS or its designee) is in
recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located.
(xxx) All payments required to be made prior to the Cut-off Date for
such Mortgage Loan under the terms of the Mortgage Note have been made and
no Mortgage Loan has been more than 30 days delinquent more than once in
the twelve month period immediately prior to the Cut-off Date.
(xxxi) With respect to each Mortgage Loan, the Depositor or Servicer
is in possession of a complete Mortgage File except for the documents
which have been delivered to the Trustee or which have been submitted for
recording and not yet returned.
(xxxii) Immediately prior to the transfer and assignment
contemplated herein, the Depositor was the sole owner and holder of the
Mortgage Loans. The Mortgage Loans were not assigned or pledged by the
Depositor and the Depositor had good and marketable title thereto, and the
Depositor had full right to transfer and sell the Mortgage Loans to the
Trustee free and clear of any encumbrance, participation interest, lien,
equity, pledge, claim or security interest and had full right and
authority subject to no interest or participation in, or agreement with
any other party to sell or otherwise transfer the Mortgage Loans.
(xxxiii) Any future advances made prior to the Cut-off Date have
been consolidated with the outstanding principal amount secured by the
Mortgage, and the secured principal amount, as consolidated, bears a
single interest rate and single repayment term. The lien of the Mortgage
securing the consolidated principal amount is expressly insured as having
first lien priority by a title insurance policy, an endorsement to the
policy insuring the mortgagee's consolidated interest or by other title
evidence acceptable to FNMA and FHLMC. The consolidated principal amount
does not exceed the original principal amount of the Mortgage Loan.
(xxxiv) The Mortgage Loan was underwritten in accordance with the
applicable Underwriting Guidelines in effect at the time of origination
with exceptions thereto exercised in a reasonable manner.
(xxxv) If the Mortgage Loan is secured by a long-term residential
lease, (1) the lessor under the lease holds a fee simple interest in the
land; (2) the terms of such lease expressly permit the mortgaging of the
leasehold estate, the assignment of the lease without the lessor's consent
and the acquisition by the holder of the Mortgage of the rights of the
lessee upon foreclosure or assignment in lieu of foreclosure or provide
the holder of the Mortgage with substantially similar protections; (3) the
terms of such lease do not (a) allow the termination thereof upon the
lessee's default without the holder of the Mortgage being entitled to
receive written notice of, and opportunity to cure, such default, (b)
allow the termination of the lease in the event of damage or destruction
as long as the Mortgage is in existence, (c) prohibit the holder of the
Mortgage from being insured (or receiving proceeds of insurance) under the
hazard insurance policy or policies relating to the Mortgaged Property or
(d) permit any increase in the rent other than pre-established increases
set forth in the lease; (4) the original term of such lease in not less
than 15 years; (5) the term of such lease does not terminate earlier than
five years after the maturity date of the Mortgage Note; and (6) the
Mortgaged Property is located in a jurisdiction in which the use of
leasehold estates in transferring ownership in residential properties is a
widely accepted practice.
(xxxvi) No more than 0.24% (by Cut-off Date Principal Balance) of
the Mortgage Loans, respectively, are secured by long-term residential
leases.
(xxxvii) The Mortgaged Property is located in the state identified
in the Mortgage Loan Schedule and consists of a parcel of real property
with a detached single family residence erected thereon, or a two- to
four-family dwelling, or an individual condominium unit, or an individual
unit in a planned unit development, or, in the case of Mortgage Loans
secured by Co-op Shares, leases or occupancy agreements; provided,
however, that any condominium project or planned unit development
generally conforms with the applicable Underwriting Guidelines regarding
such dwellings, and no residence or dwelling is a mobile home or a
manufactured dwelling.
(xxxviii) The Depositor used no adverse selection procedures in
selecting the Mortgage Loan for inclusion in the Trust Estate.
(xxxix) Each Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code.
(xl) With respect to each Mortgage where a lost note affidavit has
been delivered to the Trustee in place of the related Mortgage Note, the
related Mortgage Note is no longer in existence.
(xli) No Mortgage Loan is a "high cost" loan as defined under any
federal, state or local law applicable to such Mortgage Loan at the time
of its origination.
(xlii) No Mortgage Loan originated on or after October 1, 2002
through March 6, 2003 is governed by the Georgia Fair Lending Act.
Notwithstanding the foregoing, no representations or warranties are
made by the Depositor as to the environmental condition of any Mortgaged
Property; the absence, presence or effect of hazardous wastes or hazardous
substances on any Mortgaged Property; any casualty resulting from the presence
or effect of hazardous wastes or hazardous substances on, near or emanating from
any Mortgaged Property; the impact on Certificateholders of any environmental
condition or presence of any hazardous substance on or near any Mortgaged
Property; or the compliance of any Mortgaged Property with any environmental
laws, nor is any agent, Person or entity otherwise affiliated with the Depositor
authorized or able to make any such representation, warranty or assumption of
liability relative to any Mortgaged Property. In addition, no representations or
warranties are made by the Depositor with respect to the absence or effect of
fraud in the origination of any Mortgage Loan.
It is understood and agreed that the representations and warranties
set forth in this Section 2.04 shall survive delivery of the respective Mortgage
Files to the Trustee or the Custodian and shall inure to the benefit of the
Trustee, notwithstanding any restrictive or qualified endorsement or assignment.
Upon discovery by any of the Depositor, the Servicer, the Trustee or
the Custodian that any of the representations and warranties set forth in this
Section 2.04 is not accurate (referred to herein as a "breach") and that such
breach materially and adversely affects the interests of the Certificateholders
in the related Mortgage Loan, the party discovering such breach shall give
prompt written notice to the other parties (any Custodian being so obligated
under a Custodial Agreement); provided that any such breach that causes the
Mortgage Loan not to be a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code shall be deemed to materially and adversely affect the
interests of the Certificateholders. Within 90 days of its discovery or its
receipt of notice of any such breach, the Depositor shall cure such breach in
all material respects or shall either (i) repurchase the Mortgage Loan or any
property acquired in respect thereof from the Trustee at a price equal to the
Repurchase Price or (ii) if within two years of the Closing Date, substitute for
such Mortgage Loan in the manner described in Section 2.02; provided that if the
breach would cause the Mortgage Loan to be other than a "qualified mortgage" as
defined in Section 860G(a)(3) of the Code, any such repurchase or substitution
must occur within 90 days from the date the breach was discovered. In addition
to the foregoing, if a breach of the representation set forth in clause (vi) or
(xlii) of this Section 2.04 occurs as a result of a violation of an applicable
predatory or abusive lending law, the Depositor shall reimburse the Trust for
all costs or damages incurred by the Trust as a result of the violation of such
law (such amount, the "Reimbursement Amount"). The Repurchase Price of any
repurchase described in this paragraph, the Substitution Adjustment Amount, if
any, and any Reimbursement Amount shall be deposited in the Servicer Custodial
Account. It is understood and agreed that, except with respect to the second
preceding sentence, the obligation of the Depositor to repurchase or substitute
for any Mortgage Loan or Mortgaged Property as to which such a breach has
occurred and is continuing shall constitute the sole remedy respecting such
breach available to Certificateholders, or to the Trustee on behalf of
Certificateholders, and such obligation shall survive until termination of the
Trust hereunder.
Section 2.05 Designation of Interests in the REMIC. The Depositor
hereby designates the Classes of Senior Certificates (other than the Class A-R
Certificate) and the Classes of Class B Certificates as "regular interests" and
the Class A-R Certificate as the single class of "residual interest" in the
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 the 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 REMIC is January 25,
2036.
Section 2.08 Execution and Delivery of Certificates. The Trustee has
executed and delivered to or upon the order of the Depositor, in exchange for
the Mortgage Loans, together with all other assets included in the definition of
"Trust Estate," receipt of which is hereby acknowledged, Certificates in
authorized denominations which evidence ownership of the entire Trust Estate.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans. For and on behalf
of the Certificateholders, the Servicer shall service and administer the
Mortgage Loans, all in accordance with the terms of this Agreement, Customary
Servicing Procedures, applicable law and the terms of the Mortgage Notes and
Mortgages. In connection with such servicing and administration, the Servicer
shall have full power and authority, acting alone and/or through Subservicers as
provided in Section 3.02, to do or cause to be done any and all things that it
may deem necessary or desirable in connection with such servicing and
administration including, but not limited to, the power and authority, subject
to the terms hereof, (a) to execute and deliver, on behalf of the
Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents, (b) to consent, with respect to the Mortgage Loans it
services, to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages (but only in the manner provided in this Agreement),
(c) to collect any Insurance Proceeds and other Liquidation Proceeds relating to
the Mortgage Loans it services, and (d) to effectuate foreclosure or other
conversion of the ownership of the Mortgaged Property securing any Mortgage Loan
it services. The Servicer shall represent and protect the interests of the Trust
in the same manner as it protects its own interests in mortgage loans in its own
portfolio in any claim, proceeding or litigation regarding a Mortgage Loan and
shall not make or permit any modification, waiver or amendment of any term of
any Mortgage Loan, except as provided pursuant to Section 3.21. Without limiting
the generality of the foregoing, the Servicer, in its own name or in the name of
any Subservicer or the Depositor and the Trustee, is hereby authorized and
empowered by the Depositor and the Trustee, when the Servicer or any
Subservicer, as the case may be, believes it appropriate in its reasonable
judgment, to execute and deliver, on behalf of the Trustee, the Depositor, the
Certificateholders or any of them, any and all instruments or agreements of
satisfaction, cancellation, default, assumption, modification, discharge,
partial or full release, and all other comparable instruments and agreements,
with respect to the Mortgage Loans it services, and with respect to the related
Mortgaged Properties held for the benefit of the Certificateholders. To the
extent that the Servicer is not permitted to execute and deliver such documents
pursuant to the preceding sentence, the Servicer shall prepare and deliver to
the Depositor and/or the Trustee such documents requiring execution and delivery
by either or both of them as are necessary or appropriate to enable the Servicer
to service and administer the Mortgage Loans it services. Upon receipt of such
documents, the Depositor and/or the Trustee, upon the direction of the Servicer,
shall promptly execute such documents and deliver them to the Servicer.
Alternatively, upon the request of the Servicer, the Trustee shall execute and
deliver to the Servicer any additional powers of attorney and other documents
prepared by the Servicer that are reasonably necessary or appropriate to enable
the Servicer to carry out its servicing and administrative duties under this
Agreement.
In accordance with the standards of the preceding paragraph, the
Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the payment of taxes and assessments on the Mortgaged
Properties relating to the Mortgage Loans it services, which Servicing Advances
shall be reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11.
The costs incurred by the Servicer, if any, in effecting the timely payments of
taxes and assessments on the Mortgaged Properties and related insurance premiums
shall not, for the purpose of calculating monthly distributions to the
Certificateholders, be added to the Stated Principal Balances of the related
Mortgage Loans, notwithstanding that the terms of such Mortgage Loans so permit.
The relationship of the Servicer (and of any successor to the
Servicer as servicer under this Agreement) to the Trustee under this Agreement
is intended by the parties to be that of an independent contractor and not that
of a joint venturer, partner or agent.
Section 3.02 Subservicing; Enforcement of the Obligations of
Servicer. (a) The Servicer may arrange for the subservicing of any Mortgage Loan
it services by a Subservicer pursuant to a Subservicing Agreement; provided,
however, that such subservicing arrangement and the terms of the related
Subservicing Agreement must provide for the servicing of such Mortgage Loan in a
manner consistent with the servicing arrangements contemplated hereunder.
Notwithstanding the provisions of any Subservicing Agreement, any of the
provisions of this Agreement relating to agreements or arrangements between the
Servicer and a Subservicer or reference to actions taken through a Subservicer
or otherwise, the Servicer shall remain obligated and liable to the Depositor,
the Trustee and the Certificateholders for the servicing and administration of
the Mortgage Loans it services in accordance with the provisions of this
Agreement without diminution of such obligation or liability by virtue of such
Subservicing Agreements or arrangements or by virtue of indemnification from the
Subservicer and to the same extent and under the same terms and conditions as if
the Servicer alone were servicing and administering those Mortgage Loans. All
actions of each Subservicer performed pursuant to the related Subservicing
Agreement shall be performed as agent of the Servicer with the same force and
effect as if performed directly by the Servicer.
(b) For purposes of this Agreement, the Servicer shall be deemed to
have received any collections, recoveries or payments with respect to the
Mortgage Loans it services that are received by a Subservicer regardless of
whether such payments are remitted by the Subservicer to the Servicer.
(c) As part of its servicing activities hereunder, the Servicer, for
the benefit of the Trustee and the Certificateholders, shall use its best
reasonable efforts to enforce the obligations of each Subservicer engaged by the
Servicer under the related Subservicing Agreement, to the extent that the
non-performance of any such obligation would have a material and adverse effect
on a Mortgage Loan. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Subservicing Agreements and the pursuit of
other appropriate remedies, shall be in such form and carried out to such an
extent and at such time as the Servicer, in its good faith business judgment,
would require were it the owner of the related Mortgage Loans. The Servicer
shall pay the costs of such enforcement at its own expense, and shall be
reimbursed therefor only (i) from a general recovery resulting from such
enforcement to the extent, if any, that such recovery exceeds all amounts due in
respect of the related Mortgage Loan or (ii) from a specific recovery of costs,
expenses or attorneys fees against the party against whom such enforcement is
directed.
(d) Any Subservicing Agreement entered into by the Servicer shall
provide that it may be assumed or terminated by the Trustee, if the Trustee has
assumed the duties of the Servicer, or any successor Servicer, at the Trustee's
or successor Servicer's option, as applicable, without cost or obligation to the
assuming or terminating party or the Trust Estate, upon the assumption by such
party of the obligations of the Servicer pursuant to Section 8.05.
Section 3.03 Fidelity Bond; Errors and Omissions Insurance. The
Servicer shall maintain, at its own expense, a blanket fidelity bond and an
errors and omissions insurance policy, with broad coverage on all officers,
employees or other persons acting in any capacity requiring such persons to
handle funds, money, documents or papers relating to the Mortgage Loans it
services. These policies must insure the Servicer against losses resulting from
dishonest or fraudulent acts committed by the Servicer's personnel, any
employees of outside firms that provide data processing services for the
Servicer, and temporary contract employees or student interns. Such fidelity
bond shall also protect and insure the Servicer against losses in connection
with the release or satisfaction of a Mortgage Loan without having obtained
payment in full of the indebtedness secured thereby. No provision of this
Section 3.03 requiring such fidelity bond and errors and omissions insurance
shall diminish or relieve the Servicer from its duties and obligations as set
forth in this Agreement. The minimum coverage under any such bond and insurance
policy shall be at least equal to the corresponding amounts required by FNMA in
the FNMA Servicing Guide or by FHLMC in the FHLMC Sellers' & Servicers' Guide,
as amended or restated from time to time, or in an amount as may be permitted to
the Servicer by express waiver of FNMA or FHLMC.
Section 3.04 Access to Certain Documentation. The Servicer shall
provide to the 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 upon reasonable and prior written request and during normal business
hours at the offices designated by the Servicer; provided that the Servicer
shall be entitled to be reimbursed by each such Certificateholder for actual
expenses incurred by the Servicer in providing such reports and access. Nothing
in this Section 3.04 shall limit the obligation of the Servicer to observe any
applicable law and the failure of the Servicer to provide access as provided in
this Section 3.04 as a result of such obligation shall not constitute a breach
of this Section 3.04.
Section 3.05 Maintenance of Primary Insurance Policy; Claims;
Collections of BPP Mortgage Loan Payments. (a) With respect to each Mortgage
Loan with a Loan-to-Value Ratio in excess of 80% or such other Loan-to-Value
Ratio as may be required by law, the Servicer shall, without any cost to the
Trust Estate, maintain or cause the Mortgagor to maintain in full force and
effect a Primary Insurance Policy insuring that portion of the Mortgage Loan in
excess of a percentage in conformity with FNMA requirements. The Servicer shall
pay or shall cause the Mortgagor to pay the premium thereon on a timely basis,
at least until the Loan-to-Value Ratio of such Mortgage Loan is reduced to 80%
or such other Loan-to-Value Ratio as may be required by law. If such Primary
Insurance Policy is terminated, the Servicer shall obtain from another insurer a
comparable replacement policy, with a total coverage equal to the remaining
coverage of such terminated Primary Insurance Policy. If the insurer shall cease
to be an insurer acceptable to FNMA or FHLMC, the Servicer shall notify the
Trustee in writing, it being understood that the Servicer shall not have any
responsibility or liability for any failure to recover under the Primary
Insurance Policy for such reason. If the Servicer determines that recoveries
under the Primary Insurance Policy are jeopardized by the financial condition of
the insurer, the Servicer shall obtain from another insurer which meets the
requirements of this Section 3.05 a replacement insurance policy. The Servicer
shall not take any action that would result in noncoverage under any applicable
Primary Insurance Policy of any loss that, but for the actions of the Servicer,
would have been covered thereunder. In connection with any assumption or
substitution agreement entered into or to be entered into pursuant to Section
3.13, the Servicer shall promptly notify the insurer under the related Primary
Insurance Policy, if any, of such assumption or substitution of liability in
accordance with the terms of such Primary Insurance Policy and shall take all
actions which may be required by such insurer as a condition to the continuation
of coverage under such Primary Insurance Policy. If such Primary Insurance
Policy is terminated as a result of such assumption or substitution of
liability, the Servicer shall obtain a replacement Primary Insurance Policy as
provided above.
In connection with its activities as servicer, the Servicer agrees
to prepare and present, on behalf of itself, the Trustee and the
Certificateholders, claims to the insurer under any Primary Insurance Policy in
a timely fashion in accordance with the terms of such Primary Insurance Policy
and, in this regard, to take such action as shall be necessary to permit
recovery under any Primary Insurance Policy respecting a defaulted Mortgage
Loan. Pursuant to Section 3.09(a), any amounts collected by the Servicer under
any Primary Insurance Policy shall be deposited in the related Escrow Account,
subject to withdrawal pursuant to Section 3.09(b).
The Servicer will comply with all provisions of applicable state and
federal law relating to the cancellation of, or collection of premiums with
respect to, Primary Mortgage Insurance, including, but not limited to, the
provisions of the Homeowners Protection Act of 1998, and all regulations
promulgated thereunder, as amended from time to time.
(b) The Servicer shall take all actions necessary to collect, on
behalf of the Trust, any BPP Mortgage Loan Payments required to be made to the
Trust pursuant to the Mortgage Loan Purchase Agreement.
Section 3.06 Rights of the Depositor and the Trustee in Respect of
the Servicer. The Depositor may, but is not obligated to, enforce the
obligations of the Servicer hereunder and may, but is not obligated to, perform,
or cause a designee to perform, any defaulted obligation of the Servicer
hereunder and in connection with any such defaulted obligation to exercise the
related rights of the Servicer hereunder; provided that the Servicer shall not
be relieved of any of its obligations hereunder by virtue of such performance by
the Depositor or its designee. Neither the Trustee nor the Depositor shall have
any responsibility or liability for any action or failure to act by the Servicer
nor shall the Trustee or the Depositor be obligated to supervise the performance
of the Servicer hereunder or otherwise.
Any Subservicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such shall be deemed to be between the Subservicer and the
Servicer alone, and the Trustee and Certificateholders shall not be deemed
parties thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to the Subservicer except as set forth in Section 3.07.
The Servicer shall be solely liable for all fees owed by it to any Subservicer,
irrespective of whether the Servicer's compensation pursuant to this Agreement
is sufficient to pay such fees.
Section 3.07 Trustee to Act as Servicer. If the Servicer shall for
any reason no longer be the Servicer hereunder (including by reason of an Event
of Default), the Trustee shall within 90 days of such time, assume, if it so
elects, or shall appoint a successor Servicer to assume, all of the rights and
obligations of the Servicer hereunder arising thereafter (except that the
Trustee shall not be (a) liable for losses of the Servicer pursuant to Section
3.12 or any acts or omissions of the predecessor Servicer hereunder, (b)
obligated to make Advances if it is prohibited from doing so by applicable law
or (c) deemed to have made any representations and warranties of the Servicer
hereunder). Any such assumption shall be subject to Sections 7.02 and 8.05. If
the Servicer shall for any reason no longer be the Servicer (including by reason
of any Event of Default), the Trustee or the successor Servicer may elect to
succeed to any rights and obligations of the Servicer under each Subservicing
Agreement or may terminate each Subservicing Agreement. If it has elected to
assume the Subservicing Agreement, the Trustee or the successor Servicer shall
be deemed to have assumed all of the Servicer's interest therein and to have
replaced the Servicer as a party to any Subservicing Agreement entered into by
the Servicer as contemplated by Section 3.02 to the same extent as if the
Subservicing Agreement had been assigned to the assuming party except that the
Servicer shall not be relieved of any liability or obligations under any such
Subservicing Agreement.
The Servicer that is no longer the Servicer hereunder shall, upon
request of the Trustee, but at the expense of such predecessor Servicer, deliver
to the assuming party all documents and records relating to each Subservicing
Agreement or substitute servicing agreement and the Mortgage Loans then being
serviced thereunder and an accounting of amounts collected or held by it and
otherwise use its best efforts to effect the orderly and efficient transfer of
such substitute Subservicing Agreement to the assuming party. The Trustee shall
be entitled to be reimbursed from the predecessor Servicer (or the Trust if the
predecessor Servicer is unable to fulfill its obligations hereunder) for all
Servicing Transfer Costs.
Section 3.08 Collection of Mortgage Loan Payments; Servicer
Custodial Account and Certificate Account. (a) Continuously from the date hereof
until the principal and interest on all Mortgage Loans are paid in full, the
Servicer will proceed diligently, in accordance with this Agreement, to collect
all payments due under each of the Mortgage Loans it services when the same
shall become due and payable. Further, the Servicer will in accordance with all
applicable law and Customary Servicing Procedures ascertain and estimate taxes,
assessments, fire and hazard insurance premiums, mortgage insurance premiums and
all other charges with respect to the Mortgage Loans it services that, as
provided in any Mortgage, will become due and payable to the end that the
installments payable by the Mortgagors will be sufficient to pay such charges as
and when they become due and payable. Consistent with the foregoing, the
Servicer may in its discretion (i) waive any late payment charge or any
prepayment charge or penalty interest in connection with the prepayment of a
Mortgage Loan it services and (ii) extend the due dates for payments due on a
Mortgage Note for a period not greater than 120 days; provided, however, that
the Servicer cannot extend the maturity of any such Mortgage Loan past the date
on which the final payment is due on the latest maturing Mortgage Loan as of the
Cut-off Date. In the event of any such arrangement, the Servicer shall make
Periodic Advances on the related Mortgage Loan in accordance with the provisions
of Section 3.20 during the scheduled period in accordance with the amortization
schedule of such Mortgage Loan without modification thereof by reason of such
arrangements. The Servicer shall not be required to institute or join in
litigation with respect to collection of any payment (whether under a Mortgage,
Mortgage Note or otherwise or against any public or governmental authority with
respect to a taking or condemnation) if it reasonably believes that enforcing
the provision of the Mortgage or other instrument pursuant to which such payment
is required is prohibited by applicable law.
(b) The Servicer shall establish and maintain the Servicer Custodial
Account. The Servicer shall deposit or cause to be deposited into the Servicer
Custodial Account, all on a daily basis within one Business Day of receipt,
except as otherwise specifically provided herein, the following payments and
collections remitted by Subservicers or received by the Servicer in respect of
the Mortgage Loans subsequent to the Cut-off Date (other than in respect of
principal and interest due on the Mortgage Loans on or before the Cut-off Date)
and the following amounts required to be deposited hereunder with respect to the
Mortgage Loans it services:
(i) all payments on account of principal of the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans, net
of the Servicing Fee;
(iii) (A) all Insurance Proceeds and Liquidation Proceeds, other
than Insurance Proceeds to be (1) applied to the restoration or repair of
the Mortgaged Property, (2) released to the Mortgagor in accordance with
Customary Servicing Procedures or (3) required to be deposited to an
Escrow Account pursuant to Section 3.09(a), and other than any Excess
Proceeds and (B) any Insurance Proceeds released from an Escrow Account
pursuant to Section 3.09(b)(iv);
(iv) any amount required to be deposited by the Servicer pursuant to
Section 3.08(d) in connection with any losses on Permitted Investments
with respect to the Servicer Custodial Account;
(v) any amounts required to be deposited by the Servicer pursuant to
Section 3.14;
(vi) all Repurchase Prices, all Substitution Adjustment Amounts and
all Reimbursement Amounts, to the extent received by the Servicer;
(vii) Periodic Advances made by the Servicer pursuant to Section
3.20 and any Compensating Interest;
(viii) any Recoveries;
(ix) any Buy-Down Funds required to be deposited pursuant to Section
3.24; and
(x) any other amounts required to be deposited hereunder.
The foregoing requirements for deposits to the Servicer Custodial
Account by the Servicer shall be exclusive, it being understood and agreed that,
without limiting the generality of the foregoing, Ancillary Income need not be
deposited by the Servicer. If the Servicer shall deposit in the Servicer
Custodial Account any amount not required to be deposited, it may at any time
withdraw or direct the institution maintaining the Servicer Custodial Account to
withdraw such amount from the Servicer Custodial Account, any provision herein
to the contrary notwithstanding. The Servicer Custodial Account may contain
funds that belong to one or more trust funds created for mortgage pass-through
certificates of other series and may contain other funds respecting payments on
mortgage loans belonging to the Servicer or serviced by the Servicer on behalf
of others; provided, however, that such commingling of funds shall not be
permitted at any time during which Fitch's senior long-term unsecured debt
rating of Bank of America is below "A". Notwithstanding such commingling of
funds, the Servicer shall keep records that accurately reflect the funds on
deposit in the Servicer Custodial Account that have been identified by it as
being attributable to the Mortgage Loans it services. The Servicer shall
maintain adequate records with respect to all withdrawals made pursuant to this
Section 3.08. All funds required to be deposited in the Servicer Custodial
Account shall be held in trust for the Certificateholders until withdrawn in
accordance with Section 3.11.
(c) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Certificate Account. The Trustee shall, promptly upon
receipt, deposit in the Certificate Account and retain therein the following:
(i) the aggregate amount remitted by the Servicer to the Trustee
pursuant to Section 3.11(a)(viii);
(ii) any amount paid by the Trustee pursuant to Section 3.08(d) in
connection with any losses on Permitted Investments with respect to the
Certificate Account; and
(iii) any other amounts deposited hereunder which are required to be
deposited in the Certificate Account.
If the Servicer shall remit any amount not required to be remitted,
it may at any time direct the Trustee to withdraw such amount from the
Certificate Account, any provision herein to the contrary notwithstanding. Such
direction may be accomplished by delivering an Officer's Certificate to the
Trustee which describes the amounts deposited in error in the Certificate
Account. All funds required to be deposited in the Certificate Account shall be
held by the Trustee in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 3.11. In
no event shall the Trustee incur liability for withdrawals from the Certificate
Account at the direction of the Servicer.
(d) Each institution at which the Servicer Custodial Account or the
Certificate Account is maintained shall invest the funds therein as directed in
writing by the Servicer, in the case of the Servicer Custodial Account, or the
Trustee, in the case of the Certificate Account, in Permitted Investments, which
shall mature not later than (i) in the case of the Servicer Custodial Account,
the Business Day next preceding the related Remittance Date (except that if such
Permitted Investment is an obligation of the institution that maintains such
account, then such Permitted Investment shall mature not later than such
Remittance Date) and (ii) in the case of the Certificate Account, the Business
Day next preceding the Distribution Date (except that if such Permitted
Investment is an obligation of the institution that maintains such account, then
such Permitted Investment shall mature not later than such Distribution Date)
and, in each case, shall not be sold or disposed of prior to its maturity. All
such Permitted Investments shall be made in the name of the Trustee, for the
benefit of the Certificateholders. All Servicer Custodial Account Reinvestment
Income shall be for the benefit of the Servicer as part of its Servicing
Compensation and shall be retained by it monthly as provided herein. All income
or gain (net of any losses) realized from any such investment of funds on
deposit in the Certificate Account shall be for the benefit of the Trustee as
additional compensation and shall be retained by it monthly as provided herein.
The amount of any losses realized in the Servicer Custodial Account or the
Certificate Account incurred in any such account in respect of any such
investments shall promptly be deposited by the Servicer in the Servicer
Custodial Account or by the Trustee in the Certificate Account, as applicable.
(e) The Servicer shall give notice to the Trustee of any proposed
change of the location of the Servicer Custodial Account maintained by the
Servicer not later than 30 days and not more than 45 days prior to any change
thereof. The Trustee shall give notice to the Servicer, each Rating Agency and
the Depositor of any proposed change of the location of the Certificate Account
not later than 30 days after and not more than 45 days prior to any change
thereof. The creation of the Servicer Custodial Account shall be evidenced by a
certification substantially in the form of Exhibit F hereto. A copy of such
certification shall be furnished to the Trustee.
Section 3.09 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts. (a) To the extent required by the related Mortgage Note and not
violative of current law, the Servicer shall segregate and hold all funds
collected and received pursuant to each Mortgage Loan which constitute Escrow
Payments in trust separate and apart from any of its own funds and general
assets and for such purpose shall establish and maintain one or more escrow
accounts (collectively, the "Escrow Account"), titled "Bank of America, N.A., in
trust for registered holders of Banc of America Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 2005-12 and various Mortgagors." The
Escrow Account shall be established with a commercial bank, a savings bank or a
savings and loan association that meets the guidelines set forth by FNMA or
FHLMC as an eligible institution for escrow accounts and which is a member of
the Automated Clearing House. In any case, the Escrow Account shall be insured
by the FDIC to the fullest extent permitted by law. The Servicer shall deposit
in the appropriate Escrow Account on a daily basis, and retain therein: (i) all
Escrow Payments collected on account of the Mortgage Loans, (ii) all amounts
representing proceeds of any hazard insurance policy which are to be applied to
the restoration or repair of any related Mortgaged Property and (iii) all
amounts representing proceeds of any Primary Insurance Policy. Nothing herein
shall require the Servicer to compel a Mortgagor to establish an Escrow Account
in violation of applicable law.
(b) Withdrawals of amounts so collected from the Escrow Accounts may
be made by the Servicer only (i) to effect timely payment of taxes, assessments,
mortgage insurance premiums, fire and hazard insurance premiums, condominium or
PUD association dues, or comparable items constituting Escrow Payments for the
related Mortgage, (ii) to reimburse the Servicer out of related Escrow Payments
made with respect to a Mortgage Loan for any Servicing Advance made by the
Servicer pursuant to Section 3.09(c) with respect to such Mortgage Loan, (iii)
to refund to any Mortgagor any sums determined to be overages, (iv) for transfer
to the Servicer Custodial Account upon default of a Mortgagor or in accordance
with the terms of the related Mortgage Loan and if permitted by applicable law,
(v) for application to restore or repair the Mortgaged Property, (vi) to pay to
the Mortgagor, to the extent required by law, any interest paid on the funds
deposited in the Escrow Account, (vii) to pay to itself any interest earned on
funds deposited in the Escrow Account (and not required to be paid to the
Mortgagor), (viii) to the extent permitted under the terms of the related
Mortgage Note and applicable law, to pay late fees with respect to any Monthly
Payment which is received after the applicable grace period, (ix) to withdraw
suspense payments that are deposited into the Escrow Account, (x) to withdraw
any amounts inadvertently deposited in the Escrow Account or (xi) to clear and
terminate the Escrow Account upon the termination of this Agreement in
accordance with Section 10.01. Any Escrow Account shall not be a part of the
Trust Estate.
(c) With respect to each Mortgage Loan, the Servicer shall maintain
accurate records reflecting the status of taxes, assessments and other charges
which are or may become a lien upon the Mortgaged Property and the status of
Primary Insurance Policy premiums and fire and hazard insurance coverage. The
Servicer shall obtain, from time to time, all bills for the payment of such
charges (including renewal premiums) and shall effect payment thereof prior to
the applicable penalty or termination date and at a time appropriate for
securing maximum discounts allowable, employing for such purpose deposits of the
Mortgagor in the Escrow Account, if any, which shall have been estimated and
accumulated by the Servicer in amounts sufficient for such purposes, as allowed
under the terms of the Mortgage. To the extent that a Mortgage does not provide
for Escrow Payments, the Servicer shall determine that any such payments are
made by the Mortgagor. The Servicer assumes full responsibility for the timely
payment of all such bills and shall effect timely payments of all such bills
irrespective of each Mortgagor's faithful performance in the payment of same or
the making of the Escrow Payments. The Servicer shall advance any such payments
that are not timely paid, but the Servicer shall be required so to advance only
to the extent that such Servicing Advances, in the good faith judgment of the
Servicer, will be recoverable by the Servicer out of Insurance Proceeds,
Liquidation Proceeds or otherwise.
Section 3.10 Access to Certain Documentation and Information
Regarding the Mortgage Loans. The Servicer shall afford the Trustee reasonable
access to all records and documentation regarding the Mortgage Loans and all
accounts, insurance information and other matters relating to this Agreement,
such access being afforded without charge, but only upon reasonable request and
during normal business hours at the office designated by the Servicer.
Section 3.11 Permitted Withdrawals from the Servicer Custodial
Account and Certificate Account. (a) The Servicer may from time to time make
withdrawals from the Servicer Custodial Account, for the following purposes:
(i) to pay to the Servicer (to the extent not previously retained),
the Servicing Compensation to which it is entitled pursuant to Section
3.17;
(ii) to reimburse the Servicer for unreimbursed Advances made by it,
such right of reimbursement pursuant to this clause (ii) being limited to
amounts received on the Mortgage Loan(s) (including amounts received in
respect of BPP Mortgage Loan Payments for such Mortgage Loan) in respect
of which any such Advance was made;
(iii) to reimburse the Servicer for any Nonrecoverable Advance
previously made;
(iv) to reimburse the Servicer for Insured Expenses from the related
Insurance Proceeds;
(v) to pay to the purchaser, with respect to each Mortgage Loan or
REO Property that has been purchased pursuant to Section 2.02 or 2.04, all
amounts received thereon after the date of such purchase;
(vi) to reimburse the Servicer or the Depositor for expenses
incurred by any of them and reimbursable pursuant to Section 7.03;
(vii) to withdraw any amount deposited in the Servicer Custodial
Account and not required to be deposited therein;
(viii) on or prior to the Remittance Date, to withdraw an amount
equal to the related Pool Distribution Amount for such Distribution Date,
to the extent on deposit, and remit such amount in immediately available
funds to the Trustee for deposit in the Certificate Account; and
(ix) to clear and terminate the Servicer Custodial Account upon
termination of this Agreement pursuant to Section 10.01.
The Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Servicer Custodial Account pursuant to clauses (i), (ii),
(iv) and (v). Prior to making any withdrawal from the Servicer Custodial Account
pursuant to clause (iii), the Servicer shall deliver to the Trustee an Officer's
Certificate of a Servicing Officer indicating the amount of any previous Advance
determined by the Servicer to be a Nonrecoverable Advance and identifying the
related Mortgage Loan(s) and their respective portions of such Nonrecoverable
Advance.
(b) The Trustee shall be deemed to withdraw funds from the
Certificate Account for distributions to Certificateholders in the manner
specified in this Agreement. In addition, the Trustee may from time to time make
withdrawals from the Certificate Account for the following purposes:
(i) to pay to itself the Trustee Fee;
(ii) to pay to itself as additional compensation earnings on or
investment income with respect to funds in the Certificate Account and any
other amounts (other than the Trustee Fee) due to it under this Agreement
for the related Distribution Date;
(iii) to withdraw and return to the Servicer any amount deposited in
the Certificate Account and not required to be deposited therein; and
(iv) to clear and terminate the Certificate Account upon termination
of this Agreement pursuant to Section 10.01.
Section 3.12 Maintenance of Hazard Insurance. The Servicer shall
cause to be maintained for each Mortgage Loan, fire and hazard insurance with
extended coverage customary in the area where the Mortgaged Property is located
in an amount which is at least equal to the lesser of (a) the full insurable
value of the Mortgaged Property or (b) the greater of (i) the outstanding
principal balance owing on the Mortgage Loan and (ii) an amount such that the
proceeds of such insurance shall be sufficient to avoid the application to the
Mortgagor or loss payee of any coinsurance clause under the policy. If the
Mortgaged Property is in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards (and such
flood insurance has been made available) the Servicer will cause to be
maintained a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration and the requirements of FNMA
or FHLMC. The Servicer shall also maintain on REO Property, fire and hazard
insurance with extended coverage in an amount which is at least equal to the
maximum insurable value of the improvements which are a part of such property,
liability insurance and, to the extent required, flood insurance in an amount
required above. Any amounts collected by the Servicer under any such policies
(other than amounts to be deposited in an Escrow Account and applied to the
restoration or repair of the property subject to the related Mortgage or
property acquired in liquidation of the Mortgage Loan, or to be released to the
Mortgagor in accordance with Customary Servicing Procedures) shall be deposited
in the Servicer Custodial Account, subject to withdrawal pursuant to Section
3.11(a). It is understood and agreed that no earthquake or other additional
insurance need be required by the Servicer of any Mortgagor or maintained on REO
Property, other than pursuant to such applicable laws and regulations as shall
at any time be in force and as shall require such additional insurance. All
policies required hereunder shall be endorsed with standard mortgagee clauses
with loss payable to the Servicer, and shall provide for at least 30 days prior
written notice of any cancellation, reduction in amount or material change in
coverage to the Servicer.
The hazard insurance policies for each Mortgage Loan secured by a
unit in a condominium development or planned unit development shall be
maintained with respect to such Mortgage Loan and the related development in a
manner which is consistent with FNMA requirements.
Notwithstanding the foregoing, the Servicer may maintain a blanket
policy insuring against hazard losses on all of the Mortgaged Properties
relating to the Mortgage Loans in lieu of maintaining the required hazard
insurance policies for each Mortgage Loan and may maintain a blanket policy
insuring against special flood hazards in lieu of maintaining any required flood
insurance. Any such blanket policies shall (A) be consistent with prudent
industry standards, (B) name the Servicer as loss payee, (C) provide coverage in
an amount equal to the aggregate unpaid principal balance on the related
Mortgage Loans without co-insurance, and (D) otherwise comply with the
requirements of this Section 3.12. Any such blanket policy may contain a
deductible clause; provided that if any Mortgaged Property is not covered by a
separate policy otherwise complying with this Section 3.12 and a loss occurs
with respect to such Mortgaged Property which loss would have been covered by
such a policy, the Servicer shall deposit in the Servicer Custodial Account the
difference, if any, between the amount that would have been payable under a
separate policy complying with this Section 3.12 and the amount paid under such
blanket policy.
Section 3.13 Enforcement of Due-On-Sale Clauses; Assumption
Agreements. (a) Except as otherwise provided in this Section 3.13, when any
Mortgaged Property subject to a Mortgage has been conveyed by the Mortgagor, the
Servicer shall use reasonable efforts, to the extent that it has actual
knowledge of such conveyance, to enforce any due-on-sale clause contained in any
Mortgage Note or Mortgage, to the extent permitted under applicable law and
governmental regulations, but only to the extent that such enforcement will not
adversely affect or jeopardize coverage under any Required Insurance Policy.
Notwithstanding the foregoing, the Servicer is not required to exercise such
rights with respect to a Mortgage Loan if the Person to whom the related
Mortgaged Property has been conveyed or is proposed to be conveyed satisfies the
terms and conditions contained in the Mortgage Note and Mortgage related thereto
and the consent of the mortgagee under such Mortgage Note or Mortgage is not
otherwise required under such Mortgage Note or Mortgage as a condition to such
transfer. If (i) the Servicer is prohibited by law from enforcing any such
due-on-sale clause, (ii) coverage under any Required Insurance Policy would be
adversely affected, (iii) the Mortgage Note does not include a due-on-sale
clause or (iv) nonenforcement is otherwise permitted hereunder, the Servicer is
authorized, subject to Section 3.13(b), to take or enter into an assumption and
modification agreement from or with the Person to whom such Mortgaged Property
has been or is about to be conveyed, pursuant to which such Person becomes
liable under the Mortgage Note and, unless prohibited by applicable state law,
the Mortgagor remains liable thereon; provided that the Mortgage Loan shall
continue to be covered (if so covered before the Servicer enters such agreement)
by the applicable Required Insurance Policies. The Servicer, subject to Section
3.13(b), is also authorized with the prior approval of the insurers under any
Required Insurance Policies to enter into a substitution of liability agreement
with such Person, pursuant to which the original Mortgagor is released from
liability and such Person is substituted as Mortgagor and becomes liable under
the Mortgage Note. Notwithstanding the foregoing, the Servicer shall not be
deemed to be in default under this Section 3.13 by reason of any transfer or
assumption which the Servicer reasonably believes it is restricted by law from
preventing, for any reason whatsoever.
(b) Subject to the Servicer's duty to enforce any due-on-sale clause
to the extent set forth in Section 3.13(a), in any case in which a Mortgaged
Property has been conveyed to a Person by a Mortgagor, and such Person is to
enter into an assumption agreement or modification agreement or supplement to
the Mortgage Note or Mortgage or if an instrument of release is required
releasing the Mortgagor from liability on the Mortgage Loan, the Servicer shall
prepare and execute the assumption agreement with the Person to whom the
Mortgaged Property is to be conveyed and such modification agreement or
supplement to the Mortgage Note or Mortgage or other instruments as are
reasonable or necessary to carry out the terms of the Mortgage Note or Mortgage
or otherwise to comply with any applicable laws regarding assumptions or the
transfer of the Mortgaged Property to such Person. In connection with any such
assumption, no material term of the Mortgage Note may be changed. In addition,
the substitute Mortgagor and the Mortgaged Property must be acceptable to the
Servicer in accordance with its underwriting standards as then in effect.
Together with each such substitution, assumption or other agreement or
instrument, the Servicer shall execute an Officer's Certificate signed by a
Servicing Officer stating that the requirements of this subsection have been
met. The Servicer shall notify the Trustee that any such substitution or
assumption agreement has been completed by forwarding to the Trustee (or at the
direction of the Trustee, the Custodian) the Officer's Certificate described in
the previous sentence and the original of such substitution or assumption
agreement, which in the case of the original shall be added to the related
Mortgage File and shall, for all purposes, be considered a part of such Mortgage
File to the same extent as all other documents and instruments constituting a
part thereof. Any fee collected by the Servicer for entering into an assumption
or substitution of liability agreement may be retained by the Servicer as
additional Servicing Compensation.
Section 3.14 Realization Upon Defaulted Mortgage Loans; REO
Property. Subject to Section 3.21, the Servicer shall use reasonable efforts to
foreclose upon or otherwise comparably convert the ownership of Mortgaged
Properties securing such of the Mortgage Loans as come into and continue in
default and as to which no satisfactory arrangements can be made for collection
of delinquent payments. In connection with such foreclosure or other conversion,
the Servicer shall follow Customary Servicing Procedures and shall meet the
requirements of the insurer under any Required Insurance Policy; provided,
however, that the Servicer may enter into a special servicing agreement with an
unaffiliated Holder of 100% Percentage Interest of a Class of Class B
Certificates or a holder of a class of securities representing interests in the
Class B Certificates alone or together with other subordinated mortgage
pass-through certificates. Such agreement shall be substantially in the form
attached hereto as Exhibit K or subject to each Rating Agency's acknowledgment
that the ratings of the Certificates in effect immediately prior to the entering
into such agreement would not be qualified, downgraded or withdrawn and the
Certificates would not be placed on credit review status (except for possible
upgrading) as a result of such agreement. Any such agreement may contain
provisions whereby such holder may instruct the Servicer to commence or delay
foreclosure proceedings with respect to delinquent Mortgage Loans and will
contain provisions for the deposit of cash by the holder that would be available
for distribution to Certificateholders if Liquidation Proceeds are less than
they otherwise may have been had the Servicer acted in accordance with its
normal procedures. Notwithstanding the foregoing, the Servicer shall not be
required to expend its own funds in connection with any foreclosure or towards
the restoration of any Mortgaged Property unless it shall determine (i) that
such restoration and/or foreclosure will increase the proceeds of liquidation of
the Mortgage Loan after reimbursement to itself of such expenses and (ii) that
such expenses will be recoverable to it through proceeds of the liquidation of
the Mortgage Loan (respecting which it shall have priority for purposes of
withdrawals from the Servicer Custodial Account). Any such expenditures shall
constitute Servicing Advances for purposes of this Agreement.
With respect to any REO Property, the deed or certificate of sale
shall be taken in the name of the Trustee for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. The
Trustee's name shall be placed on the title to such REO Property solely as the
Trustee hereunder and not in its individual capacity. The Servicer shall ensure
that the title to such REO Property references this Agreement and the Trustee's
capacity hereunder. Pursuant to its efforts to sell such REO Property, the
Servicer shall either itself or through an agent selected by the Servicer
manage, conserve, protect and operate such REO Property in the same manner that
it manages, conserves, protects and operates other foreclosed property for its
own account and in the same manner that similar property in the same locality as
the REO Property is managed. Incident to its conservation and protection of the
interests of the Certificateholders, the Servicer may rent the same, or any part
thereof, as the Servicer deems to be in the best interest of the
Certificateholders for the period prior to the sale of such REO Property. The
Servicer shall prepare for and deliver to the Trustee a statement with respect
to each REO Property that has been rented, if any, showing the aggregate rental
income received and all expenses incurred in connection with the management and
maintenance of such REO Property at such times as is necessary to enable the
Trustee to comply with the reporting requirements of the REMIC Provisions;
provided, however, that the Servicer shall have no duty to rent any REO Property
on behalf of the Trust. The net monthly rental income, if any, from such REO
Property shall be deposited in the Servicer Custodial Account no later than the
close of business on each Determination Date. The Servicer shall perform, with
respect to the Mortgage Loans, the tax reporting and withholding required by
Sections 1445 and 6050J of the Code with respect to foreclosures and
abandonments, the tax reporting required by Section 6050H of the Code with
respect to the receipt of mortgage interest from individuals and, if required by
Section 6050P of the Code with respect to the cancellation of indebtedness by
certain financial entities, by preparing such tax and information returns as may
be required, in the form required.
If the Trust acquires any Mortgaged Property as described above or
otherwise in connection with a default or a default which is reasonably
foreseeable on a Mortgage Loan, the Servicer shall dispose of such Mortgaged
Property prior to the end of the third calendar year following the year of its
acquisition by the Trust (such period, the "REO Disposition Period") unless (A)
the Trustee shall have been supplied by the Servicer with an Opinion of Counsel
to the effect that the holding by the Trust of such Mortgaged Property
subsequent to the REO Disposition Period will not result in the imposition of
taxes on "prohibited transactions" (as defined in Section 860F of the Code) on
the REMIC or cause the Trust Estate created hereunder to fail to qualify as a
REMIC at any time that any Certificates are outstanding, or (B) the Trustee (at
the Servicer's expense) or the Servicer shall have applied for, prior to the
expiration of the REO Disposition Period, an extension of the REO Disposition
Period in the manner contemplated by Section 856(e)(3) of the Code. If such an
Opinion of Counsel is provided or such an exemption is obtained, the Trust may
continue to hold such Mortgaged Property (subject to any conditions contained in
such Opinion of Counsel) for the applicable period. Notwithstanding any other
provision of this Agreement, no Mortgaged Property acquired by the Trust shall
be rented (or allowed to continue to be rented) or otherwise used for the
production of income by or on behalf of the Trust in such a manner or pursuant
to any terms that would (i) cause such Mortgaged Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or
(ii) subject the REMIC created hereunder to the imposition of any federal, state
or local income taxes on the income earned from such Mortgaged Property under
Section 860G(c) of the Code or otherwise, unless the Servicer has agreed to
indemnify and hold harmless the Trust with respect to the imposition of any such
taxes. The Servicer shall identify to the Trustee any Mortgaged Property
relating to a Mortgage Loan held by the Trust for 30 months for which no plans
to dispose of such Mortgaged Property by the Servicer have been made. After
delivery of such identification, the Servicer shall proceed to dispose of any
such Mortgaged Property by holding a commercially reasonable auction for such
property.
The income earned from the management of any REO Properties, net of
reimbursement to the Servicer for expenses incurred (including any property or
other taxes) in connection with such management and net of unreimbursed
Servicing Fees, Periodic Advances and Servicing Advances, shall be applied to
the payment of principal of and interest on the related defaulted Mortgage Loans
(solely for the purposes of allocating principal and interest, interest shall be
treated as accruing as though such Mortgage Loans were still current) and all
such income shall be deemed, for all purposes in this Agreement, to be payments
on account of principal and interest on the related Mortgage Notes and shall be
deposited into the Servicer Custodial Account. To the extent the net income
received during any calendar month is in excess of the amount attributable to
amortizing principal and accrued interest at the related Mortgage Interest Rate
on the related Mortgage Loan for such calendar month, such excess shall be
considered to be a partial prepayment of principal of the related Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well as any
income from an REO Property, will be applied in the following order of priority:
first, to reimburse the Servicer for any related unreimbursed Servicing Advances
and Servicing Fees; second, to reimburse the Servicer for any unreimbursed
Periodic Advances and to reimburse the Servicer Custodial Account for any
Nonrecoverable Advances (or portions thereof) that were previously withdrawn by
the Servicer pursuant to Section 3.11(a)(iii) that related to such Mortgage
Loan; third, to accrued and unpaid interest (to the extent no Periodic Advance
has been made for such amount or any such Periodic Advance has been reimbursed)
on the Mortgage Loan or related REO Property, at the Mortgage Interest Rate to
the Due Date occurring in the month in which such amounts are required to be
distributed; and fourth, as a recovery of principal of the Mortgage Loan. Excess
Proceeds, if any, from the liquidation of a Liquidated Mortgage Loan will be
retained by the Servicer as additional Servicing Compensation pursuant to
Section 3.17.
Section 3.15 Trustee to Cooperate; Release of Mortgage Files. Upon
the payment in full of any Mortgage Loan, or the receipt by the Servicer of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Servicer will immediately notify the Trustee (or, at the
direction of the Trustee, the Custodian) by delivering, or causing to be
delivered, two copies (one of which will be returned to the Servicer with the
Mortgage File) of a Request for Release (which may be delivered in an electronic
format acceptable to the Trustee and the Servicer). Upon receipt of such
request, the Trustee or the Custodian, as applicable, shall within seven
Business Days release the related Mortgage File to the Servicer. The Trustee
shall deliver to the Servicer the Mortgage Note with written evidence of
cancellation thereon. If the Mortgage has been recorded in the name of MERS or
its designee, the Servicer shall 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. 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 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 the Custodian, as applicable,
shall, upon delivery to the Trustee (or, at the direction of the Trustee, the
Custodian) of a Request for Release signed by a Servicing Officer, release the
Mortgage File within seven Business Days to the Servicer. Subject to the further
limitations set forth below, the Servicer shall cause the Mortgage File so
released to be returned to the Trustee or the Custodian, as applicable, when the
need therefor by the Servicer no longer exists, unless the Mortgage Loan is
liquidated and the proceeds thereof are deposited in the Servicer Custodial
Account, in which case the Servicer shall deliver to the Trustee or the
Custodian, as applicable, a Request for Release, signed by a Servicing Officer.
Upon prepayment in full of any Mortgage Loan or the receipt of
notice that funds for such purpose have been placed in escrow, the Servicer
shall give an instrument of satisfaction (or Assignment of Mortgage without
recourse) regarding the Mortgaged Property relating to such Mortgage Loan, which
instrument of satisfaction or Assignment of Mortgage, as the case may be, shall
be delivered to the Person entitled thereto against receipt of the prepayment in
full. If the Mortgage is registered in the name of MERS or its designee, the
Servicer shall take all necessary action to reflect the release on the records
of MERS. In lieu of executing such satisfaction or Assignment of Mortgage, or if
another document is required to be executed by the Trustee, the Servicer may
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.
Section 3.16 Documents, Records and Funds in Possession of the
Servicer to be Held for the Trustee. The Servicer shall transmit to the Trustee
or, at the direction of the Trustee, the Custodian as required by this Agreement
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 for any funds received by the Servicer or which otherwise are collected
by the Servicer as Liquidation Proceeds or Insurance Proceeds in respect of any
Mortgage Loan. The documents constituting the Servicing File shall be held by
the Servicer as custodian and bailee for the Trustee. All Mortgage Files and
funds collected or held by, or under the control of, the 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 Servicer Custodial Account, shall be held by the Servicer for
and on behalf of the Trustee and shall be and remain the sole and exclusive
property of the Trustee, subject to the applicable provisions of this Agreement.
The Servicer also agrees that it shall not knowingly create, incur or subject
any Mortgage File or any funds that are deposited in the Servicer Custodial
Account, 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 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 Servicer shall be entitled to set off against and deduct from any such
funds any amounts that are properly due and payable to the Servicer under this
Agreement.
Section 3.17 Servicing Compensation. The Servicer shall be entitled
out of each payment of interest on a Mortgage Loan (or portion thereof) and
included in the Trust Estate to retain or withdraw from the Servicer Custodial
Account an amount equal to the Servicing Fee for such Distribution Date;
provided, however, that the aggregate Servicing Fee for the Servicer shall be
reduced (but not below zero) by an amount equal to the Compensating Interest.
Any additional Servicing Compensation shall be retained by the
Servicer to the extent not required to be deposited in the Servicer Custodial
Account pursuant to Section 3.08(b). The Servicer shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
and shall not be entitled to reimbursement therefor except as specifically
provided in this Agreement.
Section 3.18 Annual Statement as to Compliance. Commencing in the
calendar year following the date of this Agreement, the Servicer shall deliver
to the Trustee and each Rating Agency on or before the 10th day (or if not a
Business Day, the immediately preceding Business Day) preceding the latest day
in each year on which an annual report on Form 10-K may be timely filed with the
Securities and Exchange Commission (without regard to any extension), an
Officer's Certificate stating, as to the signer thereof, that (a) a review of
the activities of the Servicer during the preceding calendar year and of the
performance of the Servicer under this Agreement has been made under such
officer's supervision, and (b) to the best of such officer's knowledge, based on
such review, the Servicer has fulfilled all its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof.
Section 3.19 Annual Independent Public Accountants' Servicing
Statement; Financial Statements. Commencing in the calendar year following the
date of this Agreement, the Servicer shall, at its own expense, on or before the
10th day (or if not a Business Day, the immediately preceding Business Day)
preceding the latest day in each year on which an annual report on Form 10-K may
be timely filed with the Securities and Exchange Commission (without regard to
any extension), cause a firm of independent public accountants (who may also
render other services to the Servicer or any affiliate thereof) which is a
member of the American Institute of Certified Public Accountants to furnish (i)
a statement to the Trustee to the effect that such firm has, with respect to the
Servicer's overall servicing operations, examined such operations in accordance
with the requirements of the Uniform Single Attestation Program for Mortgage
Bankers, stating such firm's conclusions relating thereto or (ii) commencing
with calendar year 2007, a report in accordance with Rule 1-02(a)(3) and Rule
2-02(g) of Regulation S-X under the 1933 Act and the Exchange Act that attests
to, and reports on, an assessment made by the Servicer of its compliance with
the servicing criteria set forth in Item 1122(d) of Regulation AB, as required
by Rules 13a-18 and 15d-18 under the Exchange Act, and Item 1122(b) of
Regulation AB.
Section 3.20 Advances. The Servicer shall determine on or before
each Servicer Advance Date whether it is required to make a Periodic Advance
pursuant to the definition thereof. If the Servicer determines it is required to
make a Periodic Advance, it shall, on or before the Servicer Advance Date,
either (a) deposit into the Servicer Custodial Account an amount equal to the
Advance and/or (b) make an appropriate entry in its records relating to the
Servicer Custodial Account that any portion of the Amount Held for Future
Distribution in the Servicer Custodial Account has been used by the Servicer in
discharge of its obligation to make any such Periodic Advance on a Mortgage
Loan. Any funds so applied shall be replaced by the Servicer by deposit in the
Servicer Custodial Account no later than the close of business on the Business
Day preceding the next Servicer Advance Date. The Servicer shall be entitled to
be reimbursed from the Servicer Custodial Account for all Advances of its own
funds made pursuant to this Section 3.20 as provided in Section 3.11(a). The
obligation to make Periodic Advances with respect to any Mortgage Loan shall
continue until the ultimate disposition of the REO Property or Mortgaged
Property relating to such Mortgage Loan. The Servicer shall inform the Trustee
of the amount of the Periodic Advance to be made by the Servicer on each
Servicer Advance Date no later than the related Remittance Date.
The Servicer shall deliver to the Trustee on the related Servicer
Advance Date an Officer's Certificate of a Servicing Officer indicating the
amount of any proposed Periodic Advance determined by the Servicer to be a
Nonrecoverable Advance. Notwithstanding anything to the contrary, the Servicer
shall not be required to make any Periodic Advance or Servicing Advance that
would be a Nonrecoverable Advance.
Section 3.21 Modifications, Waivers, Amendments and Consents. (a)
Subject to this Section 3.21, the Servicer may agree to any modification,
waiver, forbearance, or amendment of any term of any Mortgage Loan without the
consent of the Trustee or any Certificateholder. All modifications, waivers,
forbearances or amendments of any Mortgage Loan shall be in writing and shall be
consistent with Customary Servicing Procedures.
(b) The Servicer shall not agree to enter into, and shall not enter
into, any modification, waiver (other than a waiver referred to in Section 3.13,
which waiver, if any, shall be governed by Section 3.13), forbearance or
amendment of any term of any Mortgage Loan if such modification, waiver,
forbearance, or amendment would:
(i) forgive principal owing under such Mortgage Loan or permanently
reduce the interest rate on such Mortgage Loan;
(ii) affect the amount or timing of any related payment of
principal, interest or other amount payable thereunder;
(iii) in the Servicer's judgment, materially impair the security for
such Mortgage Loan or reduce the likelihood of timely payment of amounts
due thereon; or
(iv) otherwise constitute a "significant modification" within the
meaning of Treasury Regulations Section 1.860G-2(b);
unless, in the case of clauses (ii) through (iv) above, (A) such Mortgage Loan
is 90 days or more past due or (B) the Servicer delivers to the Trustee an
Opinion of Counsel to the effect that such modification, waiver, forbearance or
amendment would not affect the REMIC status of the Trust Estate. Notwithstanding
the foregoing, no Opinion of Counsel need be delivered if the purpose of the
modification is to reduce the Monthly Payment on a Mortgage Loan as a result of
a partial Principal Prepayment; provided that the Mortgage Loan is fully
amortized by its original maturity date. Subject to Customary Servicing
Procedures, the Servicer may permit a forbearance for a Mortgage Loan which in
the Servicer's judgment is subject to imminent default.
(c) The Servicer may, as a condition to granting any request by a
Mortgagor for consent, modification, waiver, forbearance or amendment, the
granting of which is within the Servicer's discretion pursuant to the Mortgage
Loan and is permitted by the terms of this Agreement, require that such
Mortgagor pay to the Servicer, as additional Servicing Compensation, a
reasonable or customary fee for the additional services performed in connection
with such request, together with any related costs and expenses incurred by the
Servicer, which amount shall be retained by the Servicer as additional Servicing
Compensation.
(d) The Servicer shall notify the Trustee, in writing, of any
modification, waiver, forbearance or amendment of any term of any Mortgage Loan
and the date thereof, and shall deliver to the Trustee (or, at the direction of
the Trustee, the Custodian) for deposit in the related Mortgage File, an
original counterpart of the agreement relating to such modification, waiver,
forbearance or amendment, promptly (and in any event within ten Business Days)
following the execution thereof; provided, however, that if any such
modification, waiver, forbearance or amendment is required by applicable law to
be recorded, the Servicer (i) shall deliver to the Trustee a copy thereof and
(ii) shall deliver to the Trustee such document, with evidence of notification
upon receipt thereof from the public recording office.
Section 3.22 Reports to the Securities and Exchange Commission. (a)
The Trustee and the 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 Trustee
shall prepare on behalf of the Trust any monthly Current Reports on Form 8-K
(each, a "Monthly Form 8-K") and Annual Reports on Form 10-K (each, a "Form
10-K") customary for similar securities as required by the Exchange Act and the
rules and regulations of the Securities and Exchange Commission thereunder, and
the Trustee shall sign (other than any Form 10-K) and file (via the Securities
and Exchange Commission's Electronic Data Gathering and Retrieval System) such
forms on behalf of the Trust. The Servicer shall sign any Form 10-K.
(b) Each Monthly Form 8-K shall be filed by the Trustee within 15
days after each Distribution Date, including a copy of the monthly statement to
Certificateholders delivered pursuant to Section 5.04(b) (each, a "Distribution
Date Statement") for such Distribution Date as an exhibit thereto. Prior to
March 30th of each year (or such earlier date as may be required by the Exchange
Act and the rules and regulations of the Securities and Exchange Commission)
commencing in the calendar year following the date of this Agreement, the
Trustee shall file a Form 10-K, in substance as required by applicable law or
applicable Securities and Exchange Commission staff's interpretations. Such Form
10-K shall include as exhibits the Servicer's annual statement of compliance
described under Section 3.18 and the accountant's report described under Section
3.19, in each case, to the extent they have been timely delivered to the
Trustee. If they are not so timely delivered, the Trustee shall file an amended
Form 10-K including such documents as exhibits reasonably promptly after they
are delivered to the Trustee. The Trustee shall have no liability with respect
to any failure to properly prepare or file such periodic reports resulting from
or relating to the Trustee's inability or failure to obtain any information not
resulting from its own negligence, willful misconduct or bad faith. The Form
10-K shall also include a certification in the form attached hereto as Exhibit O
(the "Certification"), which shall be signed by a senior officer of the Servicer
in charge of the servicing function. The Servicer shall deliver the
Certification to the Trustee three (3) Business Days prior to the latest date on
which the Form 10-K may be timely filed. The Trustee, the Depositor and the
Servicer shall reasonably cooperate to enable the Securities and Exchange
Commission requirements with respect to the Trust to be met in the event that
the Securities and Exchange Commission issues additional interpretive guidelines
or promulgates rules or regulations, or in the event of any other change of law
that would require reporting arrangements or the allocation of responsibilities
with respect thereto, as described in this Section 3.22, to be conducted or
allocated in a different manner.
(c) Prior to the latest date on which the Form 10-K may be timely
filed each year, the Trustee shall sign and deliver to the Servicer a
certification (in the form attached hereto as Exhibit P) for the benefit of the
Servicer and its officers, directors and Affiliates (provided, however, that the
Trustee shall not undertake an analysis of the accountant's report attached as
an exhibit to the Form 10-K). In addition, the Trustee shall indemnify and hold
harmless the Servicer and its officers, directors and Affiliates from and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon any inaccuracy in the certification provided by the
Trustee pursuant to this Section 3.22(c), any breach of the Trustee's
obligations under this Section 3.22(c) or the Trustee's negligence, bad faith or
willful misconduct in connection therewith. If the indemnification provided for
herein is unavailable or insufficient to hold harmless the Servicer and its
officers, directors and affiliates, then the Trustee agrees that it shall
contribute to the amount paid or payable by the Servicer, its officers,
directors or affiliates as a result of the losses, claims, damages or
liabilities of the Servicer, its officers, directors or affiliates in such
proportion as is appropriate to reflect the relative fault of the Servicer and
its officers, directors and affiliates on the one hand and the Trustee on the
other in connection with a breach of the Trustee's obligations under this
Section 3.22(c) or the Trustee's negligence, bad faith or willful misconduct in
connection therewith. The Servicer hereby acknowledges and agrees that the
Depositor and the Trustee are relying on the Servicer's performance of its
obligations under Sections 3.18 and 3.19 in order to perform their respective
obligations under this Section 3.22.
(d) Upon any filing with the Securities and Exchange Commission, the
Trustee shall promptly deliver to the Depositor a copy of any such executed
report, statement or information.
(e) The obligations set forth in paragraphs (a) through (d) of this
Section shall only apply with respect to periods for which the Trustee is
obligated to file reports on Form 8-K or 10-K. On or prior to January 30, 2006,
unless otherwise requested by the Depositor, the Trustee shall prepare, execute
and file with the Securities and Exchange Commission a Form 15 Suspension
Notification with respect to the Trust. At any time after the filing of a Form
15 Suspension Notification, if the Depositor or the Certificate Registrar
determines that the number of Certificateholders 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 Trustee
and the Trustee shall recommence preparing and filing reports on Form 8-K and
10-K as required pursuant to this Section and the parties hereto will again have
the obligations set forth in paragraphs (a) through (d) of this Section.
Section 3.23 Maintenance of the Rounding Account; Collections
Thereunder. On or prior to the Closing Date, the Trustee shall establish an
account (the "Rounding Account") with respect to the Class A-1 Certificates, and
Banc of America Securities LLC shall deposit $999.99 into such Rounding Account.
The Trustee shall maintain such account to provide, if needed, the Rounding
Amount (defined below) on any Distribution Date.
If, on any Distribution Date, the Trustee determines that amounts
are available out of the Pool Distribution Amount (after giving effect to the
repayment of any funds withdrawn from the Rounding Account on prior Distribution
Dates which have not been repaid) or out of payments on the Policy for
distributions of principal on the Class A-1 Certificates, and the aggregate
amount allocable to such distributions of principal is not an amount equal to an
integral multiple of $1,000, the Trustee shall withdraw from the Rounding
Account an amount which, when added to the amount allocable to such
distributions of principal, would be an integral multiple of $1,000 (the
"Rounding Amount"). On each Distribution Date prior to the date on which Assured
Guaranty fails to pay an Insured Amount in respect of principal of the Class A-1
Certificates with respect to which the Trustee determines that amounts are
available out of the Pool Distribution Amount for distributions of principal on
the Class A-1 Certificates, the aggregate amount allocable to such Certificates
will be applied first to repay any funds withdrawn from the Rounding Account on
prior Distribution Dates which have not been repaid.
Any amounts withdrawn by the Trustee from the Rounding Account shall
be deposited in the Certificate Account for distribution to the Holders of the
Class A-1 Certificates as described in the preceding paragraph.
On or promptly after the date on which Assured Guaranty fails to pay
an Insured Amount in respect of principal on the Class A-1 Certificates or the
Class Certificate Balance thereof is reduced to zero, the Trustee shall remit to
Banc of America Securities LLC any amounts remaining in the Rounding Account.
Amounts on deposit in the Rounding Account shall not be invested.
The Rounding Account established hereunder, to the extent that it
constitutes a "reserve fund" for purposes of the REMIC Provisions, shall be an
"outside reserve fund" as defined in Section 1.860G-2(h) of the Treasury
Regulations, and in that regard (A) the Rounding Account shall be an outside
reserve fund and not an asset of the REMIC, (B) the Rounding Account shall be
owned for federal tax purposes by Banc of America Securities LLC and Banc of
America Securities LLC shall report all amounts of income, deduction, gain or
loss accruing therefrom, and (C) amounts transferred by the REMIC to the
Rounding Account shall be treated for all federal tax purposes as distributed by
the REMIC to Banc of America Securities LLC.
Section 3.24 Buy-Down Account; Application of Buy-Down Funds. In
addition to the Servicer Custodial Account, if any of the Mortgage Loans are
Buy-Down Mortgage Loans, the Servicer shall establish and maintain a Buy-Down
Account, which is not part of the Trust Estate, and shall deposit therein all
Buy-Down Funds not later than the Business Day following the day of receipt and
posting by the Servicer. The Servicer shall keep and maintain a separate account
for each Buy-Down Mortgage Loan for the purpose of accounting for deposits to
and withdrawals from the Buy-Down Account. The Servicer shall invest the funds
in the Buy-Down Account in investments which are Permitted Investments. All
income and gain realized from any such investment, to the extent not required by
the applicable Buy-Down Agreements to be applied to pay interest on the related
Buy-Down Mortgage Loans, shall be for the benefit of the Servicer. The amount of
any losses incurred in respect of such investments shall be deposited in the
Buy-Down Account by the Servicer out of its own funds immediately as realized.
With respect to each Buy-Down Mortgage Loan, on the Business Day
next following receipt of the Mortgagor's required monthly payment under the
related Buy-Down Agreement, the Servicer shall withdraw from the Buy-Down
Account and deposit in immediately available funds in the Servicer Custodial
Account an amount which, when added to such Mortgagor's payment, will equal the
full monthly payment due under the related Mortgage Note.
Upon termination of a Buy-Down Agreement, no further Buy-Down Funds
relating thereto shall be deposited into the Servicer Custodial Account, and the
Servicer may withdraw the related Buy-Down Funds which remain in the Buy-Down
Account and distribute such funds as provided by such Buy-Down Agreement.
ARTICLE IV
SERVICER'S CERTIFICATE
Section 4.01 Servicer's Certificate. Each month, not later than
12:00 noon Eastern time on the Business Day following each Determination Date,
the Servicer shall deliver to the Trustee, a Servicer's Certificate (in
substance and format mutually acceptable to the Servicer and the Trustee)
certified by a Servicing Officer setting forth the information necessary in
order for the Trustee to perform its obligations under this Agreement. The
Trustee may conclusively rely upon the information contained in a Servicer's
Certificate 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. On each Distribution Date, based solely
on the information in the Servicer's Certificate, the Trustee shall distribute
or be deemed to distribute, as applicable, out of the Certificate Account (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 Regular
Certificate, by wire transfer or by such other means of payment as such
Certificateholder and the Trustee 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;
provided, however, that distributions of principal to the Special Retail
Certificates shall be made as described in Section 5.10.
None of the Holders of any Class of Certificates, the Depositor, the
Servicer 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. (a) On each Distribution
Date, based solely on the information contained in the Servicer's Certificate,
the Trustee shall withdraw from the Certificate Account (to the extent funds are
available therein) (1) the amount payable to the Trustee pursuant to Section
3.11(b)(ii) and shall pay such funds to itself, and (2) the Pool Distribution
Amount, in an amount as specified in written notice received by the Trustee from
the Servicer no later than the Business Day following the related Determination
Date, and shall apply such funds (or be deemed to apply such funds, as
applicable) from the Certificate Account first to the payment to itself of the
amount payable pursuant to Section 3.11(b)(i) and then to distributions on the
Certificates and to Assured Guaranty in the following order of priority and to
the extent of such funds:
(i) to Assured Guaranty, to pay the Premium Distribution Amount;
(ii) concurrently, to each Class of Senior Certificates (other than
the Class 30-PO Certificates), pro rata, an amount allocable to interest
equal to the Interest Distribution Amount for such Class and any shortfall
being allocated among such Classes in proportion to the amount of the
Interest Distribution Amount that would have been distributed in the
absence of such shortfall;
(iii) concurrently (a) to the Senior Certificates (other than the
Class 30-PO Certificates) and (b) to the Class 30-PO Certificates, pro
rata, based on the Senior Principal Distribution Amount and PO Principal
Amount, (A) to the Senior Certificates (other than the Class 30-PO
Certificates), in an aggregate amount up to the Senior Principal
Distribution Amount, such distribution to be allocated among such Classes
in accordance with Section 5.02(b) and (B) to the Class 30-PO
Certificates, in an aggregate amount up to the PO Principal Amount;
(iv) to the Class 30-PO Certificates, any Class PO Deferred Amount
(after giving effect to the distribution to the Class 30-PO Certificates
of the PO Recovery), up to the Subordinate Principal Distribution Amounts
for such Distribution Date from amounts otherwise distributable to the
Class B Certificates, first to the Class B-6 Certificates pursuant to
clause (v)(L) below, second to the Class B-5 Certificates pursuant to
clause (v)(J) below, third to the Class B-4 Certificates pursuant to
clause (v)(H) below, fourth to the Class B-3 Certificates pursuant to
clause (v)(F) below, fifth to the Class B-2 Certificates pursuant to
clause (v)(D) below and finally to the Class B-1 Certificates pursuant to
clause (v)(B) below;
(v) to each Class of Class B Certificates, subject to paragraph (d)
below, in the following order of priority:
(A) to the Class B-1 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(B) to the Class 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 Class PO Deferred Amounts of the
Class 30-PO Certificates pursuant to clause (iv) above until the
Class Certificate Balance thereof has been reduced to zero;
(C) to the Class B-2 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(D) to the Class 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 Class PO Deferred Amounts of the
Class 30-PO Certificates pursuant to clause (iv) above until the
Class Certificate Balance thereof has been reduced to zero;
(E) to the Class B-3 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(F) to the Class 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 Class PO Deferred Amounts of the
Class 30-PO Certificates pursuant to clause (iv) above until the
Class Certificate Balance thereof has been reduced to zero;
(G) to the Class B-4 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(H) to the Class 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 Class PO Deferred Amounts of the
Class 30-PO Certificates pursuant to clause (iv) above until the
Class Certificate Balance thereof has been reduced to zero;
(I) to the Class B-5 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(J) to the Class 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 Class PO Deferred Amounts of the
Class 30-PO Certificates pursuant to clause (iv) above until the
Class Certificate Balance thereof has been reduced to zero;
(K) to the Class B-6 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date; and
(L) to the Class 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 Class PO Deferred Amounts of the
Class 30-PO Certificates pursuant to clause (iv) above until the
Class Certificate Balance thereof has been reduced to zero;
(vi) to Assured Guaranty, any remaining Pool Distribution Amount, up
to the aggregate amount of previously unreimbursed Insured Payments; and
(vii) to the Holder of the Class A-R Certificate, any remaining Pool
Distribution Amount.
Assured Guaranty will not be entitled to any distribution with
respect to the amount payable pursuant to clause (ii) of the definition of
"Premium Distribution Amount" after the Class Certificate Balance of the Class
A-1 Certificates has been reduced to zero.
No Class of Certificates will be entitled to any distributions with
respect to the amount payable pursuant to clause (ii) of the definition of
"Interest Distribution Amount" after its Class Certificate Balance or Notional
Amount has been reduced to zero.
On any Distribution Date, amounts distributed in respect of the
Class PO Deferred Amounts (including the distribution of the PO Recoveries) will
not reduce the Class Certificate Balance of the Class 30-PO Certificates.
All distributions in respect of the Interest Distribution Amount for
a Class will be applied first with respect to the amount payable pursuant to
clause (i) of the definition of "Interest Distribution Amount" and second with
respect to the amount payable pursuant to clause (ii) of such definition.
On each Distribution Date, the Trustee shall distribute any
Reimbursement Amount sequentially to the Classes 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. To the extent any such loss
allocated to the Class A-1 Certificates was paid by Assured Guaranty under the
Policy, any portion of the Reimbursement Amount payable to the Class A-1
Certificates shall instead be paid to Assured Guaranty.
On each Distribution Date, the Trustee shall distribute any PO
Recovery to the Holders of the Class 30-PO Certificates.
(b) On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Senior Certificates pursuant to
Section 5.02(a)(iii) for such Distribution Date will be distributed,
sequentially, as follows:
first, to the Class A-R Certificate, until its Class Certificate
Balance has been reduced to zero;
second, concurrently, to the Class A-7 and Class A-8 Certificates,
pro rata, up to the Priority Amount for such Distribution Date, until
their Class Certificate Balances have been reduced to zero;
third, for each Distribution Date on or after the Distribution Date
in January 2009, $20,765.01, concurrently, to the Class A-1 and Class A-6
Certificates, pro rata, until their Class Certificate Balances have been
reduced to zero;
fourth, sequentially, up to the PAC Principal Amount for such
Distribution Date, to the Class A-4 and Class A-5 Certificates, in that
order, until their Class Certificate Balances have been reduced to zero;
fifth, concurrently, to the Class A-2 and Class A-3 Certificates,
pro rata, until their Class Certificate Balances have been reduced to
zero;
sixth, sequentially, to the Class A-4 and Class A-5 Certificates, in
that order, until their Class Certificate Balances have been reduced to
zero;
seventh, concurrently, to the Class A-1 and Class A-6 Certificates,
pro rata, until their Class Certificate Balances have been reduced to
zero; and
eighth, concurrently, to the Class A-7 and Class A-8 Certificates,
pro rata, until their Class Certificate Balances have been reduced to
zero.
On each Distribution Date on or after the Senior Credit Support
Depletion Date, notwithstanding the allocation and priority set forth above, the
portion of the Pool Distribution Amount available to be distributed as principal
of the Senior Certificates (other than the Class 30-PO Certificates) 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 30-IO Certificates are Interest-Only Certificates and are
not entitled to distributions in respect of principal.
(c) On each Distribution Date, Accrued Certificate Interest for each
Class of Senior Certificates (other than the Class 30-PO Certificates) and each
Class of Class B Certificates for such Distribution Date shall be reduced by
such Class' pro rata share, based on such Class' Interest Distribution Amount
for such Distribution Date, without taking into account the allocation made by
this Section 5.02(c), of (A) Non-Supported Interest Shortfalls, (B) on and after
the Senior Credit Support Depletion Date, any other Realized Loss on the
Mortgage Loans allocable to interest and (C) Relief Act Reductions incurred on
the Mortgage Loans during the calendar month preceding the month of such
Distribution Date.
(d) Notwithstanding the priority and allocation contained in Section
5.02(a)(v), if with respect to any Class of Class B Certificates on any
Distribution Date, (i) the aggregate of the Class Certificate Balances
immediately prior to such Distribution Date of all Classes of Class B
Certificates, as the case may be, which have a higher numerical Class
designation than such Class, divided by (ii) the Pool Stated Principal Balance
(Non-PO Portion) (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 Class B Certificates junior to such Class (the
"Restricted Classes") and the Class Certificate Balances of the Restricted
Classes of Class B Certificates will not be used in determining the Pro Rata
Share for the Class B Certificates that are not Restricted Classes. If the
aggregate Class Certificate Balances of the Class B Certificates that are not
Restricted Classes are reduced to zero, notwithstanding the previous sentence,
any funds remaining will be distributed sequentially to the Class B Certificates
that are Restricted Classes in order of their respective numerical Class
designations (beginning with the Class of Class B Certificates that is a
Restricted Class then outstanding with the lowest numerical Class designation).
Section 5.03 Allocation of Losses. (a) On or prior to each
Determination Date, the Servicer shall inform the Trustee 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) of
the total amount of Realized Losses on the Mortgage Loans. Based on such
information, the Trustee shall determine the total amount of Realized Losses on
the Mortgage Loans 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 the operation of
Section 5.03(b).
(b) The Class Certificate Balance of the Class 30-PO Certificates
shall be reduced on each Distribution Date by the amount, if any, by which the
Class Certificate Balance of the Class 30-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 such
Distribution Date.
The Class Certificate Balance of the Class of Class B Certificates
then outstanding with the highest numerical Class designation 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 Certificates (but not the Class 30-PO Certificates) and Class B
Certificates (after giving effect to the amount to be distributed as a
distribution of principal and the allocation of the Class PO Deferred Amounts on
such Distribution Date) equals the Adjusted Pool Amount (Non-PO Portion) for
such Distribution Date.
After the Senior Credit Support Depletion Date, the Class
Certificate Balances of the Senior Certificates (other than the Class 30-PO
Certificates) in the aggregate 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 Certificates
(other than the Class 30-PO Certificates) (after giving effect to the amount to
be distributed as a distribution of principal on such Distribution Date) equals
the Adjusted Pool Amount (Non-PO Portion) for such Distribution Date.
Any such reduction or increase shall be allocated among the Senior
Certificates (other than the Class 30-PO Certificates), based on the Class
Certificate Balances immediately prior to such Distribution Date until the Class
Certificate Balances thereof have been reduced to zero.
(c) Any reduction or increase in the Class Certificate Balance of a
Class of Certificates pursuant to Section 5.03(b) above shall be allocated among
the Certificates of such Class in proportion to their respective Percentage
Interests.
(d) The calculation of the amount to be distributed as principal to
any Class of Class B Certificates with respect to a Distribution Date (the
"Calculated Principal Distribution") shall be made prior to the allocation of
any Realized Losses for such Distribution Date; provided, however, the actual
payment of principal to the Classes of Class B Certificates shall be made
subsequent to the allocation of Realized Losses for such Distribution Date. In
the event that after the allocation of Realized Losses for a Distribution Date,
the Calculated Principal Distribution for a Class of Class B Certificates is
greater than the Class Certificate Balance of such Class, the excess shall be
distributed first, sequentially, to the Classes of Class B Certificates then
outstanding (beginning with the Class of Class B Certificates then outstanding
with the lowest numerical designation) until the respective Class Certificate
Balance of each such Class is reduced to zero and then to the Senior
Certificates (other than the Class 30-PO Certificates), pro rata, on the basis
of their respective Class Certificate Balances.
(e) After the Senior Credit Support Depletion Date, on any
Distribution Date on which the Class A-8 Loss Allocation Amount is greater than
zero, the Class Certificate Balance of the Class A-8 Certificates will be
reduced by the Class A-8 Loss Allocation Amount and, notwithstanding Section
5.03(b), the Class Certificate Balance of the Class A-7 Certificates will not be
reduced by the Class A-8 Loss Allocation Amount. Notwithstanding the foregoing,
on any Distribution Date in which the Class A-7 Loss Amount exceeds the Class
Certificate Balance of the Class A-8 Certificates prior to any reduction for the
Class A-8 Loss Allocation Amount, such excess will be distributed in reduction
of the Class Certificate Balance of the Class A-7 Certificates.
(f) Any increase in the Class Certificate Balance allocated to the
Class A-7 Certificates pursuant to Section 5.03(b) will instead increase the
Class Certificate Balance of the Class A-8 Certificates.
(g) Notwithstanding any other provision of this Section 5.03, no
Class Certificate Balance of a Class will be increased on any Distribution Date
such that the Class Certificate Balance of such Class exceeds its Initial Class
Certificate Balance less all distributions of principal previously distributed
in respect of such Class on prior Distribution Dates (excluding in the case of
any Class of Class B Certificates any principal otherwise payable to such Class
of Class B Certificates but used to pay any Class PO Deferred Amount).
Section 5.04 Statements to Certificateholders. (a) Prior to the
Distribution Date in each month, based upon the information provided to the
Trustee on the Servicer's Certificates delivered to the Trustee pursuant to
Section 4.01, the Trustee shall determine the following information with respect
to such Distribution Date:
(i) the amount allocable to principal, separately identifying the
aggregate amount of any Principal Prepayments and Liquidation Proceeds
included therein;
(ii) the amount allocable to interest, any Class Unpaid Interest
Shortfall included in such distribution, and any remaining Class Unpaid
Interest Shortfall after giving effect to such distribution;
(iii) 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;
(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on such Distribution
Date;
(v) the Pool Stated Principal Balance for the following Distribution
Date;
(vi) the Senior Percentage and the Subordinate Percentage for the
following Distribution Date;
(vii) the amount of the Servicing Fee paid to or retained by the
Servicer with respect to such Distribution Date;
(viii) the Pass-Through Rate for each such Class of Certificates
with respect to such Distribution Date;
(ix) the amount of Periodic Advances included in the distribution on
such Distribution Date and the aggregate amount of Periodic Advances
outstanding as of the close of business on such Distribution Date;
(x) the number and aggregate principal amounts of Mortgage Loans (A)
delinquent (exclusive of Mortgage Loans in foreclosure or bankruptcy) (1)
1 to 30 days (2) 31 to 60 days (3) 61 to 90 days and (4) 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;
(xi) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Stated Principal
Balance of such Mortgage Loan as of the close of business on the
Determination Date preceding such Distribution Date and the date of
acquisition thereof;
(xii) 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;
(xiii) the Senior Prepayment Percentage and the Subordinate
Prepayment Percentage for the following Distribution Date;
(xiv) the aggregate amount of Realized Losses incurred during the
preceding calendar month, any Class PO Deferred Amounts for such
Distribution Date;
(xv) the Class 30-IO Notional Amount;
(xvi) the amount of total Recoveries, the PO Recovery and the Non-PO
Recovery;
(xvii) (a) the Deficiency Amount, if any, for such Distribution Date
and (b) amounts, if any, in respect of the Deficiency Amount paid under
the Policy;
(xviii) the amount remaining in the Reserve Fund after taking into
account the Reserve Withdrawal, if any, for such Distribution Date; and
(xix) the Rounding Amount, if any, for such Distribution Date and
the amount applied to repay such Rounding Amount withdrawn on the prior
Distribution Date.
(b) No later than each Distribution Date, the Trustee, based upon
information supplied to it on the Servicer's Certificate, shall make available
to Assured Guaranty, each Holder of a Certificate, each Rating Agency and the
Servicer a statement setting forth the information set forth in Section 5.04(a).
In the case of information furnished pursuant to clauses (i) and
(ii) of Section 5.04(a), the amounts shall be expressed as a dollar amount per
Certificate with a $1,000 denomination.
On each Distribution Date, the Trustee shall prepare and furnish to
each Financial Market Service, in electronic or such other format and media
mutually agreed upon by the Trustee, the Financial Market Service and the
Depositor, the information contained in the statement described in Section
5.04(a) for such Distribution Date.
The Trustee will make the monthly statement to Certificateholders
(and, at its option, any additional files containing the same information in an
alternative format) available each month to Assured Guaranty, Certificateholders
and other parties to this Agreement via the Trustee's Internet website,
initially located at "xxx.xxxxxxx.xxx." Assistance in using the website can be
obtained by calling the Trustee'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 Trustee 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
Trustee 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 Trustee 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 (i), (ii)
and (vii) of Section 5.04(a), in each case aggregated for such calendar year or
applicable portion thereof during which such Person was a Certificateholder.
Such obligation of the Trustee shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the
Trustee pursuant to any requirements of the Code as from time to time in force.
The Trustee shall deliver to the Holders of Certificates any reports
or information the Trustee is required by this Agreement or the Code, Treasury
Regulations or REMIC Provisions to deliver to the Holders of Certificates, and
the Trustee 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 Trustee 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 Trustee), (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 the
REMIC's assets, determined in accordance with Treasury Regulations using a
convention, not inconsistent with Treasury Regulations, selected by the Trustee
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 the
REMIC, nothing contained in this Agreement, including without limitation Section
7.03 hereof, shall be interpreted to require the Trustee 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 5.05 Tax Returns and Reports to Certificateholders. (a) For
federal income tax purposes, the REMIC shall have a calendar year taxable year
and shall maintain its books on the accrual method of accounting.
(b) The Trustee shall prepare or cause to be prepared, shall execute
and shall file or cause to be filed with the Internal Revenue Service and
applicable state or local tax authorities income tax information returns for
each taxable year with respect to the REMIC 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 the REMIC and the Certificateholders the schedules, statements
or information at such times and in such manner as may be required thereby.
Within 30 days of the Closing Date, the Trustee shall furnish or cause to be
furnished to the Internal Revenue Service, on Form 8811 or as otherwise required
by the 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 or 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 of the REMIC for its
short taxable year ending December 31, 2005, REMIC status shall be elected for
such taxable year and all succeeding taxable years.
(d) The Trustee will maintain or cause to be maintained such records
relating to the REMIC, 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 5.06 Tax Matters Person. The Tax Matters Person shall have
the same duties with respect to the 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 A-R Certificate is hereby designated as the Tax Matters Person for the
REMIC. By its acceptance of the Class A-R Certificate, such Holder irrevocably
appoints the Trustee as its agent to perform all of the duties of the Tax
Matters Person for the REMIC.
Section 5.07 Rights of the Tax Matters Person in Respect of the
Trustee. The Trustee shall afford the Tax Matters Person, upon reasonable notice
during normal business hours, access to all records maintained by the Trustee in
respect of its duties hereunder and access to officers of the Trustee
responsible for performing such duties. Upon request, the Trustee 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 Trustee shall make available to the Tax Matters Person
such books, documents or records relating to the Trustee'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
Trustee and is not obligated to supervise the performance of the Trustee under
this Agreement or otherwise.
Section 5.08 REMIC Related Covenants. For as long as the Trust shall
exist, the Trustee, the Depositor and the Servicer shall act in accordance
herewith to assure continuing treatment of the Trust Estate as a REMIC and avoid
the imposition of tax on the REMIC. In particular:
(a) The Trustee shall not create, or permit the creation of, any
"interests" in the REMIC within the meaning of Code Section 860D(a)(2) other
than the interests represented by the Regular Certificates and the Residual
Certificate.
(b) Except as otherwise provided in the Code, (i) the Depositor and
the Servicer shall not contribute to the Trust Estate and the Trustee shall not
accept property unless substantially all of the property held in the 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 to the REMIC after the start-up day unless such contribution would
not subject the Trust Estate to the 100% tax on contributions to a REMIC after
the start-up day of the REMIC imposed by Code Section 860G(d).
(c) The Trustee shall not accept on behalf of the REMIC any fee or
other compensation for services and neither the Trustee nor the 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) The Trustee shall not sell or permit the sale of all or any
portion of the Mortgage Loans (other than in accordance with Section 2.02 or
2.04), unless such sale is pursuant to a "qualified liquidation" as defined in
Code Section 860F(a)(4)(A) and in accordance with Article X.
(e) The Trustee shall maintain books with respect to the Trust on a
calendar year taxable year and on an accrual basis.
(f) Neither the Servicer nor 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 Servicer and the Depositor, the Trustee
may engage in the activities otherwise prohibited by the foregoing paragraphs
(b), (c) and (d); provided that the Servicer shall have delivered to the Trustee
an Opinion of Counsel to the effect that such transaction will not result in the
imposition of a tax on the REMIC created hereunder and will not disqualify the
Trust Estate from treatment as a REMIC; and, provided further, that the Servicer
shall have demonstrated to the satisfaction of the Trustee that such action will
not adversely affect the rights of the Holders of the Certificates and the
Trustee and that such action will not adversely impact the rating of the
Certificates.
Section 5.09 Determination of LIBOR. On each Rate Determination Date
for a Class of LIBOR Certificates, the Trustee shall determine LIBOR for the
applicable Distribution Date on the basis of the British Bankers' Association
("BBA") "Interest Settlement Rate" for one-month deposits in U.S. Dollars as
found on Telerate page 3750 as of 11:00 A.M. London time on such Rate
Determination Date. As used herein, "Telerate page 3750" means the display
designated as page 3750 on the Moneyline Telerate Service.
If on any Rate Determination Date for a Class of LIBOR Certificates,
the Trustee is unable to determine LIBOR on the basis of the method set forth in
the preceding paragraph, LIBOR for the applicable Distribution Date will be
whichever is higher of (x) LIBOR as determined on the previous Rate
Determination Date for such Class of LIBOR Certificates or (y) the Reserve
Interest Rate. The "Reserve Interest Rate" will be the rate per annum which the
Trustee determines to be either (A) the arithmetic mean (rounding such
arithmetic mean upwards if necessary to the nearest whole multiple of 1/16%) of
the one-month U.S. Dollar lending rates that New York City banks selected by the
Trustee are quoting, on the relevant Rate Determination Date, to the principal
London offices of at least two leading banks in the London interbank market or
(B) in the event that the Trustee can determine no such arithmetic mean, the
lowest one-month U.S. Dollar lending rate that the New York City banks selected
by the Trustee are quoting on such Rate Determination Date to leading European
banks.
If on any Rate Determination Date for a Class of LIBOR Certificates,
the Trustee is required but is unable to determine the Reserve Interest Rate in
the manner provided in the preceding paragraph, LIBOR for the applicable
Distribution Date will be LIBOR as determined on the previous Rate Determination
Date for such Class of LIBOR Certificates, or, in the case of the first Rate
Determination Date, 4.29%.
The establishment of LIBOR by the Trustee and the Trustee's
subsequent calculation of the rates of interest applicable to each of the LIBOR
Certificates in the absence of manifest error, will be final and binding. After
a Rate Determination Date, the Trustee shall provide the Pass-Through Rates of
the LIBOR Certificates for the related Distribution Date to Beneficial Owners or
Holders of LIBOR Certificates who place a telephone call to the Trustee at (301)
815-6600 and make a request therefor.
Section 5.10 Principal Distributions on the Special Retail
Certificates. Prior to the date on which Assured Guaranty fails to pay an
Insured Amount under the Policy in respect of principal with respect to the
Class A-1 Certificates, distributions in reduction of the Class Certificate
Balance of the Class A-1 Certificates will be made in integral multiples of
$1,000 at the request of the appropriate representatives of Deceased Holders of
Class A-1 Certificates and at the request of Living Holders of Class A-1
Certificates or by mandatory distributions, pursuant to Section 5.10(a) and
Section 5.10(d). On or after the date on which Assured Guaranty fails to pay an
Insured Amount under the Policy in respect of principal with respect to the
Class A-1 Certificates, distributions in reduction of the Class Certificate
Balance of the Class A-1 Certificates will be made on a pro rata basis pursuant
to Section 5.10(e).
(a) Except as set forth in Section 5.10(e), on each Distribution
Date on which principal distributions to the Class A-1 Certificates are made,
such distributions will be made in the following priority:
(i) first, to requesting Deceased Holders of such Class, in the
order in which such requests are received by the Depository, but not
exceeding an aggregate amount of $100,000 for each requesting Deceased
Holder; and
(ii) second, to requesting Living Holders of such Class, in the
order in which such requests are received by the Depository, but not
exceeding an aggregate amount of $10,000 for each requesting Living
Holder.
Thereafter, distributions will be made to the Class A-1 Certificates
as provided in clauses (i) and (ii) above, up to a second $100,000 and $10,000,
respectively. This sequence of priorities will be repeated until all requests
for principal distributions by Deceased Holders and Living Holders of such Class
have been honored, to the extent of amounts available for principal
distributions to the Holders of such Class.
All requests for principal distributions to Class A-1 Certificates
will be accepted in accordance with the provisions set forth in Section 5.10(c).
Requests for principal distributions that are received by the Depository after
the related Record Date and requests for principal distributions received in a
timely manner but not accepted with respect to any Distribution Date, will be
treated as requests for principal distributions to the Class A-1 Certificates on
the next succeeding Distribution Date, and each succeeding Distribution Date
thereafter, until each such request is accepted or is withdrawn as provided in
Section 5.10(c). Such requests that are not withdrawn shall retain their order
of priority without the need for any further action on the part of the
appropriate Certificate Owner of the Class A-1 Certificate, all in accordance
with the procedures of the Depository and the Trustee. Upon the transfer of
beneficial ownership of any Class A-1 Certificate, any distribution request
previously submitted with respect to such Certificate will be deemed to have
been withdrawn only upon the receipt by the Trustee on or before the Record Date
for such Distribution Date of notification of such withdrawal in the manner set
forth in Section 5.10(c) on the Depository's "participant terminal system."
Distributions in reduction of the Class Certificate Balance of the
Class A-1 Certificates will be applied in an amount equal to the portion of the
Senior Principal Distribution Amount allocable to such Class pursuant to Section
5.02, plus any Insured Amounts in respect of principal, plus any amounts
available for distribution from the Rounding Account established as provided in
Section 3.23, provided that, subject to 5.09(e), the aggregate distribution of
principal to such Class on any Distribution Date shall be made in an integral
multiple of $1,000.
To the extent that the portion of the Senior Principal Distribution
Amount allocable to the Class A-1 Certificates on any Distribution Date exceeds
the aggregate Certificate Balance of Certificates of such Class with respect to
which principal distribution requests have been received, principal
distributions in reduction of the Class Certificate Balance of the Class A-1
Certificates will be made by mandatory distribution pursuant to Section 5.10(d).
(b) A Class A-1 Certificate shall be deemed to be held by a Deceased
Holder for purposes of this Section 5.10 if the death of the Certificate Owner
thereof is deemed to have occurred. Class A-1 Certificates beneficially owned by
tenants by the entirety, joint tenants or tenants in common will be considered
to be beneficially owned by a single owner. The death of a tenant by the
entirety, joint tenant or tenant in common will be deemed to be the death of the
Certificate Owner. Class A-1 Certificates beneficially owned by a trust will be
considered to be beneficially owned by each beneficiary of the trust to the
extent of such beneficiary's beneficial interest therein, but in no event will a
trust's beneficiaries collectively be deemed to be Certificate Owners of a
number of Class A-1 Certificates greater than the number of Class A-1
Certificates of which such trust is the owner. The death of a beneficiary of a
trust will be deemed to be the death of a Certificate Owner of the Class A-1
Certificates beneficially owned by the trust to the extent of such beneficiary's
beneficial interest in such trust. The death of an individual who was a tenant
by the entirety, joint tenant or tenant in common in a tenancy which is the
beneficiary of a trust will be deemed to be the death of the beneficiary of such
trust. The death of an individual who, during his or her lifetime, was entitled
to substantially all of the beneficial ownership interests in a Class A-1
Certificate will be deemed to be the death of the Certificate Owner of such
Class A-1 Certificate regardless of the registration of ownership, if such
beneficial ownership interest can be established to the satisfaction of the
Depository Participant. Such beneficial interest will be deemed to exist in
typical cases of street name or nominee ownership, ownership by a trustee,
ownership under the Uniform Gifts to Minors Act and community property or other
joint ownership arrangements between a husband and wife. Beneficial interest
shall include the power to sell, transfer or otherwise dispose of a Class A-1
Certificate and the right to receive the proceeds therefrom, as well as interest
and principal distributions, as applicable, payable with respect thereto. The
Trustee shall not be under any duty to determine independently the occurrence of
the death of any deceased Certificate Owner. The Trustee may rely entirely upon
documentation delivered to it pursuant to Section 5.10(c) in establishing the
eligibility of any Certificate Owner to receive the priority accorded Deceased
Holders in Section 5.10(a).
(c) Requests for principal distributions to the Certificate Owner of
any Class A-1 Certificate must be made by delivering a written request therefor
to the Depository Participant or Indirect Depository Participant that maintains
the account evidencing such Certificate Owner's interest in such Certificate. In
the case of a request on behalf of a Deceased Holder, appropriate evidence of
death and any tax waivers are required to be forwarded to the Depository
Participant under separate cover. The Depository Participant should in turn make
the request of the Depository (or, in the case of an Indirect Depository
Participant, such Indirect Depository Participant must notify the related
Depository Participant of such request, which Depository Participant should make
the request on the Depository's participant terminal system). The Depository may
establish such procedures as it deems fair and equitable to establish the order
of receipt of requests for such distributions received by it on the same day.
None of the Depositor, the Servicer or the Trustee shall be liable for any delay
in delivery of requests for distributions or withdrawals of such requests by the
Depository, a Depository Participant or any Indirect Depository Participant.
Subject to the priorities described in Section 5.10(a) above, the
Depository will honor requests for distributions in the order of their receipt.
The Depository shall determine which requests should be honored on each
Distribution Date and the Trustee shall notify the Depository as to the portion
of the applicable Senior Principal Distribution Amount (together with any
amounts available for distribution from the Rounding Account) to be distributed
to the Class A-1 Certificates by mandatory distribution pursuant to Section
5.10(d). Requests shall be honored by the Depository in accordance with the
procedures, and subject to the priorities and limitations, described in this
Section 5.10. The exact procedures to be followed by the Trustee and the
Depository for purposes of determining such priorities and limitations will be
those established from time to time by the Trustee or the Depository, as the
case may be. The decisions of the Trustee and the Depository concerning such
matters will be final and binding on all affected Persons.
Class A-1 Certificates that have been accepted for a distribution
shall be due and payable on the applicable Distribution Date. Such Certificates
shall cease to bear interest after the last day of the calendar month preceding
the month in which such Distribution Date occurs.
Any Certificate Owner of a Class A-1 Certificate that has requested
a principal distribution may withdraw its request by so notifying in writing the
Depository Participant or Indirect Depository Participant that maintains such
Certificate Owner's account. If such account is maintained by an Indirect
Depository Participant, such Indirect Depository Participant must notify the
related Depository Participant which in turn must make the request of the
Depository or on the Depository's participant terminal system. If such notice of
withdrawal of a request for distribution has not been received by the Depository
on or before the Record Date for the next Distribution Date, the previously made
request for a principal distribution will be irrevocable with respect to the
making of principal distributions on such Distribution Date.
If any requests for principal distributions are rejected by the
Depository for failure to comply with the requirements of this Section 5.10, the
Depository shall return such request to the appropriate Depository Participant
with an explanation as to the reason for such rejection.
(d) If principal distributions to be made to the Class A-1
Certificates on a Distribution Date exceed the aggregate amount of principal
distribution requests for such Class which have been received on or before the
applicable Record Date, as provided in Section 5.10(a) above, additional Class
A-1 Certificates will be selected to receive mandatory principal distributions
in lots equal to $1,000 in accordance with the then-applicable random lot
procedures of the Depository, and the then-applicable procedures of the
Depository Participants and Indirect Depository Participants representing the
Certificate Owners (which procedures may or may not be by random lot). The
Trustee shall notify the Depository of the aggregate amount of the mandatory
principal distribution to be made on the next Distribution Date. The Depository
shall then allocate such aggregate amount among the Depository Participants on a
random lot basis. Each Depository Participant and, in turn, each Indirect
Depository Participant will then select, in accordance with its own procedures,
Class A-1 Certificates from among those held in its accounts to receive
mandatory principal distributions, such that the total amount of principal
distributed to the Class A-1 Certificates so selected is equal to the aggregate
amount of such mandatory distributions allocated to such Depository Participant
by the Depository and to such Indirect Depository Participant by its related
Depository Participant, as the case may be. Depository Participants and Indirect
Depository Participants that hold Class A-1 Certificates selected for mandatory
principal distributions are required to provide notice of such mandatory
distributions to the affected Certificate Owners.
(e) Notwithstanding any provisions herein to the contrary, on each
Distribution Date if Assured Guaranty fails to pay an Insured Amount under the
Policy in respect of principal with respect to the Class A-1 Certificates,
distributions in reduction of the Class Certificate Balance of the Class A-1
Certificates will be made pro rata among the Certificate Owners of such Class
and will not be made in integral multiples of $1,000 or pursuant to requests for
distribution as permitted by Section 5.10(a) or by mandatory distributions as
provided for by Section 5.10(d).
(f) In the event that the pro rata distributions described in
Section 5.10(e) cannot be made through the facilities of the Depository, the
Class A-1 Certificates will be withdrawn by the Trustee at the direction of the
Depositor from the facilities of the Depository and Definitive Certificates will
be issued to replace such withdrawn Book-Entry Certificates pursuant to Section
6.02(c)(iii). An amendment to this Agreement, which may be approved without the
consent of any Certificateholders, shall establish procedures relating to the
manner in which pro rata distributions in reduction of the principal balance of
the Class A-1 Certificates are to be made; provided that such procedures shall
be consistent, to the extent practicable and customary for certificates similar
to the Class A-1 Certificates, with the provisions of this Section 5.10.
Section 5.11 Reserve Fund.
(a) A separate Reserve Fund shall be established on the Closing Date
for the Class A-1 Certificates. The Reserve Fund shall be maintained by the
Trustee in accordance with this Section 5.11. At the time the Reserve Fund is
established, the Depositor shall cause to be deposited into the Reserve Fund the
amount of $10,000.
With respect to each Distribution Date, the applicable Reserve
Withdrawal shall be withdrawn by the Trustee from the amount on deposit in the
Reserve Fund in accordance with this Section 5.11 and distributed on such
Distribution Date to the Holders of the Class A-1 Certificates based on the
amount of Non-Supported Interest Shortfall allocated to the Class A-1
Certificates. Any amount distributed to the Class A-1 Certificates shall be for
such Distribution Date allocated among such Certificates, pro rata, based upon
Percentage Interest.
Notwithstanding anything herein to the contrary, on the Distribution
Date on which the Class Certificate Balance of the Class A-1 Certificates has
been reduced to zero, any funds then on deposit in the Reserve Fund shall be
distributed to Banc of America Securities LLC at the address provided by it to
the Trustee.
(b) The Reserve Fund will be an "outside reserve fund" under the
REMIC Provisions that is beneficially owned for federal income tax purposes by
Banc of America Securities LLC, which shall report all income, gain, deduction
or loss with respect thereto, and will not be an asset of the REMIC. Any amount
distributed or returned to the Reserve Fund from the REMIC shall be treated as
distributed or returned to Banc of America Securities LLC as beneficial owner of
the Reserve Fund. Funds on deposit in the Reserve Fund shall remain uninvested.
Section 5.12 Policy Matters.
(a) If on the third Business Day before any Distribution Date the
Trustee determines that there will be a Deficiency Amount for such Distribution
Date, the Trustee shall determine the amount of such Deficiency Amount and shall
give notice to Assured Guaranty by telephone or telecopy of the amount of such
deficiency confirmed in writing by the Notice of Nonpayment by 12:00 noon, New
York City time on such third Business Day.
(b) At the time of the execution and delivery of this Agreement, the
Trustee shall establish a separate special purpose trust account in the name of
the Trustee for the benefit of Holders of the Class A-1 Certificates referred to
herein as the "Policy Payment Account" over which the Trustee shall have
exclusive control and sole right of withdrawal. The Trustee shall deposit any
amounts paid under the Policy into the Policy Payment Account and distribute
such amounts only for purposes of payment to Holders of the Class A-1
Certificates of the Insured Amount for which a claim was made and such amounts
may not be applied to satisfy any costs, expenses or liabilities of the Trustee
or the Trust Estate. Amounts paid under the Policy shall be disbursed by the
Trustee to Holders of the Class A-1 Certificates in the same manner as
distributions in reduction of the principal balance of and interest on the
Certificates are made under Section 5.02. It shall not be necessary for such
payments of the Insured Amount to be made by checks or wire transfers separate
from the check or wire transfer used to pay distributions in reduction of the
principal balance of and interest on the Class A-1 Certificates with funds
available to make such distributions. However, the amount of any distribution to
be paid from funds transferred from the Policy Payment Account shall be noted as
provided in (c) below and in the statement to be furnished to Holders of the
Class A-1 Certificates and Assured Guaranty pursuant to Section 5.04. Funds held
in the Policy Payment Account shall not be invested by the Trustee.
On any Distribution Date with respect to which a claim has been made
under the Policy, the amount of any funds received by the Trustee as a result of
the claim under the Policy to the extent necessary to make distributions on the
Class A-1 Certificates equal to the Deficiency Amount on such Distribution Date
shall be withdrawn from the Policy Payment Account and applied by the Trustee to
the payment in full of the Deficiency Amount. Any funds deposited into the
Policy Payment Account in respect of the Class A-1 Certificates that are
remaining therein on the first Business Day following a Distribution Date after
the Deficiency Amount has been made to the Certificateholders shall be remitted
in immediately available funds to Assured Guaranty, pursuant to the instructions
of Assured Guaranty, by the end of such Business Day.
(c) The Trustee shall keep a complete and accurate record of the
Class A-1 Interest Loss Amount and the Class A-1 Principal Loss Amount paid from
moneys received under the Policy. Assured Guaranty shall have the right to
inspect such records at reasonable times upon one Business Day's prior notice to
the Trustee.
(d) In the event that the Trustee has received a certified copy of
an order of the appropriate court that any distributions in reduction of the
principal balance of or interest on a Class A-1 Certificate has been avoided in
whole or in part as a preference payment under applicable bankruptcy law, the
Trustee shall so notify Assured Guaranty and shall comply with the provisions of
the Policy to obtain payment by Assured Guaranty of such avoided distribution,
and shall, at the time it provides notice to Assured Guaranty, notify, by mail
to Holders of the Certificates that, in the event that any Holder's distribution
is so recovered, such Holder will be entitled to payment pursuant to the terms
of the Policy, a copy of which shall be made available by the Trustee and the
Trustee shall furnish to Assured Guaranty its records evidencing the
distributions in reduction of the principal balance of and interest on the Class
A-1 Certificates, if any, which have been made by the Trustee and subsequently
recovered from Holders, and the dates on which such distributions were made.
Such payment under the Policy shall be disbursed to the receiver, conservator,
debtor-in-possession or trustee in bankruptcy named in the order and not to the
Trustee or any Class A-1 Certificateholder directly (unless such
Certificateholder has previously paid such amount to the receiver, conservator,
debtor-in-possession or trustee in bankruptcy named in the order, in which case
such payment shall be disbursed to the Trustee for distribution to such
Certificateholder upon proof of such payment reasonably satisfactory to Assured
Guaranty).
(e) The Trustee shall promptly notify Assured Guaranty of any
proceeding or the institution of any action seeking the avoidance as a
preferential transfer under applicable bankruptcy, insolvency, receivership or
similar law (a "Preference Claim") of any distribution made with respect to the
Class A-1 Certificates as to which it has actual knowledge. Each Holder of a
Class A-1 Certificate, by its purchase of such Certificates and the Trustee
hereby agree that Assured Guaranty (so long as no Assured Guaranty Default
exists) may at any time during the continuation of any proceeding relating to a
Preference Claim direct all matters relating to such Preference Claim,
including, without limitation, (i) the direction of any appeal of any order
relating to any Preference Claim and (ii) the posting of any surety, supersedeas
or performance bond pending any such appeal. In addition and without limitation
of the foregoing, Assured Guaranty shall be subrogated to the rights of the
Trustee and each Holder in the conduct of any Preference Claim, including,
without limitation, all rights of any party to an adversary proceeding or action
with respect to any court order issued in connection with any such Preference
Claim.
(f) The Trustee acknowledges, and each Holder of a Class A-1
Certificate by its acceptance of such Certificate agrees, that without the need
for any further action on the part of Assured Guaranty or the Trustee, to the
extent that Assured Guaranty makes payments directly or indirectly on account of
principal or interest on any Class A-1 Certificate, Assured Guaranty shall be
fully subrogated to all of the rights of such Certificateholders with respect to
any and all amounts paid under the Policy. The Class A-1 Certificateholders by
acceptance of such Certificates assign their rights as Holders of such
Certificates to Assured Guaranty to the extent of Assured Guaranty's interest
with respect to amounts paid under the Policy. Anything herein to the contrary
notwithstanding, solely for purposes of determining Assured Guaranty's rights,
as applicable, as subrogee for payments distributable pursuant to Section 5.02,
any payment with respect to distributions to the Class A-1 Certificates which is
made with funds received pursuant to the terms of the Policy, shall not be
considered payment of the Class A-1 Certificates from the Trust Estate and shall
not result in the distribution or the provision for the distribution in
reduction of the Class Certificate Balance of the Class A-1 Certificates except
to the extent such payment has been reimbursed to Assured Guaranty pursuant to
the terms hereof.
(g) The Servicer shall designate an Assured Guaranty Contact Person
who shall be available to Assured Guaranty to provide reasonable access to
information regarding the Mortgage Loans. The initial Assured Guaranty Contact
Person is Xxxx Xxxxxx.
(h) The Trustee shall surrender the Policy to Assured Guaranty for
cancellation upon reduction of the Class Certificate Balance of the Class A-1
Certificates to zero.
(i) All references herein to the ratings assigned to the
Certificates and to the interests of any Certificateholders shall be without
regard to the Policy.
(j) For so long as there is no continuing default by Assured
Guaranty under its obligations under the Policy, each Holder of a Class A-1
Certificate agrees that Assured Guaranty shall be entitled to exercise the
voting, consent, directing and other control rights of the Holders of the Class
A-1 Certificates without consent of such Holders and the Holders of the Class
A-1 Certificates shall only exercise such rights with the prior written consent
of Assured Guaranty.
Section 5.13 Distributions to Assured Guaranty. Amounts distributed
to Assured Guaranty hereunder shall be distributed by wire transfer in
immediately available funds to the following account: Bank: XX Xxxxxx Chase New
York; Account Name: Assured Guaranty Corp.; Account Number: 910-0000000; ABA
Number: 000-000-000; Reference: BOAMS 2005-12, Policy No: D-2005-140; or such
other account as Assured Guaranty shall designate in writing to the Trustee from
time to time at least one Business Day before any Distribution Date or, at the
election of Assured Guaranty, by check sent by first class mail to the address
as Assured Guaranty shall designate in writing to the Trustee from time to time
at least one Business Day before any Distribution Date.
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates. The Classes of Senior Certificates
and the Subordinate Certificates shall be substantially in the forms set forth
in Exhibits X-X-0, X-X-0, X-X-0, X-X-0, X-X-0, X-X-0, A-A-7, A-A-8, A-A-R,
A-30-IO, A-30-PO, X-X-0, X-X-0, X-X-0, X-X-0, X-X-0, X-X-0 and C (reverse of all
Certificates) and shall, on original issue, be executed by the Trustee and shall
be authenticated and delivered by the Trustee 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 the minimum
denominations of initial Certificate Balance or initial notional amount and the
integral multiples in excess thereof set forth in the Preliminary Statement. The
Senior Certificates (other than the Class A-R Certificate) and the Class B-1,
Class B-2 and Class B-3 Certificates 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 Trustee 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 Trustee
shall bind the Trustee, 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 Trustee 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 Trustee shall cause to be kept at an office or agency in the city in
which the Corporate Trust Office of the Trustee is located a Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Trustee shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. The Trustee 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
surrendered for exchange, the Trustee shall execute and the Trustee shall
authenticate and deliver the Certificates which the Certificateholder making the
exchange is entitled to receive. Every Certificate presented or surrendered for
transfer or exchange shall (if so required by the Trustee or the Certificate
Registrar) be duly endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Trustee 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 Certificates
may not be transferred by the Trustee 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 Trustee 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 Trustee 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 (A) the Depository advises the Trustee in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities as Depository and the Trustee or the Depositor is unable
to locate a qualified successor, the Trustee 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 Certificate Owners requesting the same or (B) upon the
occurrence of the events specified in Section 5.10(f), the Trustee shall
notify the Certificate Owners of the Special Retail Certificates, through
the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to such Certificate Owners
requesting the same. Upon surrender to the Trustee 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 Trustee shall issue
the Definitive Certificates. None of the Servicer, the Depositor 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 Trustee with an adequate
inventory of certificates to facilitate the issuance and transfer of
Definitive Certificates. Upon the issuance of Definitive Certificates, the
Trustee 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, (i) unless such transfer is made
in reliance on Rule 144A under the 1933 Act, the Trustee 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 Trustee 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 Trustee or the Depositor and (ii) the
Trustee 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 as Exhibit
G-2B, which certificates shall not be an expense of the Trustee 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. 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 Trustee 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.
(e) No transfer of an ERISA Restricted Certificate shall be made
unless the transferee delivers to the Trustee either (i) a representation letter
in the form of Exhibit H from the transferee of such Certificate, which
representation letter shall not be an expense of the Depositor, the Trustee or
the Servicer, or (ii) in the case of any ERISA Restricted Certificate presented
for registration in the name of an employee benefit plan or arrangement,
including an individual retirement account, subject to ERISA, the Code, or any
federal, state or local law ("Similar Law") which is similar to ERISA or the
Code (collectively, a "Plan"), or a trustee or custodian of any of the
foregoing, an Opinion of Counsel in form and substance satisfactory to the
Trustee and the Servicer to the effect that the purchase or holding of such
ERISA Restricted Certificate by or on behalf of such Plan will not constitute or
result in a non-exempt prohibited transaction within the meaning of ERISA,
Section 4975 of the Code or Similar Law and will not subject the Trustee, the
Depositor or the Servicer to any obligation in addition to those undertaken in
this Agreement, which Opinion of Counsel shall not be an expense of the Trustee
or the Servicer. Any transferee of an ERISA Restricted Certificate that does not
comply with either clause (i) or (ii) of the preceding sentence will be deemed
to have made one of the representations set forth in Exhibit H. For purposes of
clause (i) of the second preceding sentence, such representation shall be deemed
to have been made to the Certificate Registrar 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 Certificate Registrar
shall have received from the transferee an alternative representation acceptable
in form and substance to the Depositor. Notwithstanding anything else to the
contrary herein, any purported transfer of an ERISA Restricted Certificate to or
on behalf of a Plan without the delivery to the Trustee and the Servicer of an
Opinion of Counsel satisfactory to the Trustee and the Servicer as described
above shall be void and of no effect.
Neither the Trustee 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 Trustee
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 Trustee 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 Trustee in accordance with the foregoing requirements.
(f) Each Person who has or who acquires any Ownership Interest in
the 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 the Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in the
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in the Residual
Certificate unless such Ownership Interest is a pro rata undivided
interest.
(iii) In connection with any proposed transfer of any Ownership
Interest in the Residual Certificate, the Trustee shall require delivery
to it, in form and substance satisfactory to it, of an affidavit in the
form of Exhibit I hereto from the proposed transferee.
(iv) Notwithstanding the delivery of an affidavit by a proposed
transferee under clause (iii) above, if a Responsible Officer of the
Trustee has actual knowledge that the proposed transferee is not a
Permitted Transferee, no transfer of any Ownership Interest in the
Residual Certificate to such proposed transferee shall be effected.
(v) No Ownership Interest in the 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 Trustee with an effective Internal Revenue Service
Form W-8ECI (or successor thereto) or (B) the transferee delivers to both
the transferor and the Trustee 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.
(vi) Any attempted or purported transfer of any Ownership Interest
in the 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 the 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
Trustee shall be under no liability to any Person for any registration of
transfer of the 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 Trustee
shall be entitled to recover from any Holder of the 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 Trustee shall be distributed and
delivered by the Trustee 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 the Residual Certificate in violation of the
restrictions in this Section 6.02, then the Trustee, based on information
provided to the Trustee by the 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. The expenses of the Trustee under this clause
(vii) shall be reimbursable by the Trust.
(viii) No Ownership Interest in the Residual Certificate shall be
acquired by a Plan or any Person acting on behalf of a Plan.
(g) [Reserved]
(h) No service charge shall be imposed for any transfer or exchange
of Certificates of any Class, but the Trustee 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.
(i) 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 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 Trustee or the Certificate Registrar that such Certificate
has been acquired by a bona fide purchaser, the Trustee 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 Trustee 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 Trustee 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 Servicer, Assured
Guaranty, the Trustee, the Certificate Registrar and any agent of the Depositor,
the Servicer, Assured Guaranty, the Trustee 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
Servicer, Assured Guaranty, the Trustee, the Certificate Registrar or any agent
of the Servicer, Assured Guaranty, the Trustee or the Certificate Registrar
shall be affected by notice to the contrary.
ARTICLE VII
THE DEPOSITOR AND THE SERVICER
Section 7.01 Respective Liabilities of the Depositor and the
Servicer. The Depositor and the 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 Servicer herein. By way of
illustration and not limitation, the Depositor is not liable for the servicing
and administration of the Mortgage Loans, nor is it obligated by Section 8.01 to
assume any obligations of the 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
Servicer. The Depositor and the 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 Servicer may be merged or
consolidated, or any corporation resulting from any merger or consolidation to
which the Depositor or the Servicer shall be a party, or any Person succeeding
to the business of the Depositor or the Servicer, shall be the successor of the
Depositor or the 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 Servicer shall be qualified to service
mortgage loans on behalf of FNMA or FHLMC.
Section 7.03 Limitation on Liability of the Depositor, the Servicer
and Others. None of the Depositor, the Servicer or any of the directors,
officers, employees or agents of the Depositor or of the Servicer shall be under
any liability to the Trust Estate or the Certificateholders for any 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 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 Servicer and any director,
officer, employee or agent of the Depositor or the 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 Servicer
and any director, officer, employee or agent of the Depositor or the 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 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 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, and the Depositor and the Servicer shall be entitled to be
reimbursed therefor out of amounts attributable to the Mortgage Loans on deposit
in the Servicer Custodial Account as provided by Section 3.11.
Section 7.04 Depositor and Servicer Not to Resign. Subject to the
provisions of Section 7.02, neither the Depositor nor the 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 or, in the case of the Servicer, pursuant to Section 7.05. Any
such determination permitting the resignation of the Depositor or the Servicer
shall be evidenced by an Opinion of Counsel to such effect delivered to the
Trustee. No such resignation by the Servicer shall become effective until the
Trustee or a successor Servicer shall have assumed the Servicer's
responsibilities and obligations in accordance with Section 8.05 hereof.
Section 7.05 Assignment or Delegation of Duties by the Servicer. The
Servicer shall have the right to assign its rights and delegate its duties and
obligations hereunder; provided, however, that (i) the purchaser or transferee
accepting such assignment or delegation is qualified to service mortgage loans
for FNMA or FHLMC, is satisfactory to the Trustee, in the exercise of its
reasonable judgment, and executes and delivers to the Trustee an agreement, in
form and substance reasonably satisfactory to the Trustee, which contains an
assumption by such purchaser or transferee of the due and punctual performance
and observance of each covenant and condition to be performed or observed by the
Servicer hereunder from and after the date of such agreement; and (ii) each
applicable Rating Agency's rating of any Certificates in effect immediately
prior to such assignment, sale or transfer is not reasonably likely to be
qualified, downgraded or withdrawn as a result of such assignment, sale or
transfer and the Certificates are not reasonably likely to be placed on credit
review status by any such Rating Agency. In no case, however, shall any
permitted assignment and delegation relieve the Servicer of any liability to the
Trustee or the Depositor under this Agreement, incurred by it prior to the time
that the conditions contained in clauses (i) and (ii) above are met.
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 Servicer to deposit amounts in the Servicer
Custodial Account in the amount and manner provided herein so as to enable the
Trustee to distribute to Holders of Certificates any payment required to be made
under the terms of such Certificates and this Agreement (other than the payments
required to be made under Section 3.20) which continues unremedied for a period
of five days; or
(b) failure on the part of the Servicer duly to observe or perform
in any material respect any other covenants or agreements of the 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 Servicer by the Trustee or the Depositor, or to the Servicer, the
Depositor 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
Servicer, or for the winding up or liquidation of the 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 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 Servicer
or of or relating to substantially all of its property; or the 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) the failure of the Servicer to remit any Periodic Advance
required to be remitted by the Servicer pursuant to Section 3.20, which failure
continues unremedied at 3:00 p.m. on the related Distribution Date;
then, and in each and every such case (other than the Event of Default described
in clause (e) hereof), so long as an Event of Default shall not have been
remedied by the Servicer, the Trustee 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
Servicer (and to the Depositor), terminate all of the rights and obligations of
the Servicer under this Agreement. If an Event of Default described in clause
(e) hereof shall occur, the Trustee shall, by notice to the Servicer, terminate
all of the rights and obligations of the Servicer under this Agreement and in
and to the Mortgage Loans and proceeds thereof (other than the Servicer's right
to recovery of the aggregate Servicing Fees due prior to the date of termination
and other expenses and amounts advanced pursuant to the terms of this Agreement,
which rights the Servicer will retain under all circumstances) and the Trustee
or a successor Servicer appointed pursuant to Section 8.05 shall make the
Advance which the Servicer failed to make. On or after the receipt by the
Servicer of such written notice, all authority and power of the 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, unless and until such time as the Trustee shall appoint a
successor Servicer pursuant to Section 8.05, and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
the 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 Mortgage Loans and related
documents, or otherwise, including, without limitation, the recordation of the
assignments of the Mortgage Loans to it. The Servicer agrees to cooperate with
the Trustee in effecting the termination of the responsibilities and rights of
the 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 Servicer in the Servicer Custodial Account or thereafter
received by the 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 Mortgage Files to the
successor Servicer and amending this Agreement to reflect such succession as
Servicer pursuant to this Section 8.01 shall be paid by the predecessor
Servicer. Notwithstanding the termination of the Servicer pursuant hereto, the
Servicer shall remain liable for any causes of action arising out of any Event
of Default occurring prior to such termination.
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 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% 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 Servicer or any successor Servicer from its rights and duties
as 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 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 involve it in personal liability or be unjustly
prejudicial to the non-assenting Certificateholders.
Section 8.04 Action upon Certain Failures of the Servicer and upon
Event of Default. In the event that the Trustee shall have actual knowledge of
any failure of the Servicer specified in Section 8.01(a) or (b) which would
become an Event of Default upon the Servicer's failure to remedy the same after
notice, the Trustee shall give notice thereof to the Servicer and to Assured
Guaranty. If the Trustee shall have knowledge of an Event of Default, the
Trustee shall give prompt written notice thereof to the Certificateholders and
to Assured Guaranty.
Section 8.05 Trustee to Act; Appointment of Successor. (a) Within 90
days after the time the Servicer receives a notice of termination pursuant to
Section 8.01, the Trustee shall be the successor in all respects to the Servicer
in its capacity as servicer under this Agreement and the transactions set forth
or provided for herein and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Servicer by the terms and
provisions hereof 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 Servicer, immediately will assume all of the
obligations of the Servicer to make Advances, (ii) the Trustee in its capacity
as successor 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, acting in its capacity as successor to the Servicer in its
obligation to make Advances, 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. Subject to Section 8.05(b), as compensation therefor, the
Trustee shall be entitled to such compensation as the terminated Servicer would
have been entitled to hereunder if no such notice of termination had been given.
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 Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer hereunder; provided,
however, that any such institution appointed as successor 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 Servicer. The appointment of a successor Servicer shall not affect
any liability of the predecessor Servicer which may have arisen under this
Agreement prior to its termination as Servicer, nor shall any successor Servicer
be liable for any acts or omissions of the predecessor Servicer or for any
breach by the Servicer of any of its representations or warranties contained
herein or in any related document or agreement. Pending appointment of a
successor to the terminated 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
Servicing Transfer Costs shall be paid by the predecessor Servicer upon
presentation of reasonable documentation of such costs, and if such predecessor
Servicer defaults in its obligation to pay such costs, such costs shall be paid
by the successor Servicer or the Trustee (in which case the successor 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 Servicer or
the assumption of the duties of the Servicer, as specified in Section 8.05(a),
the Trustee may make such arrangements for the compensation of such successor
out of the payments on the Mortgage Loans serviced by the predecessor Servicer
as it and such successor shall agree, not to exceed the Servicing Fee Rate.
(c) Any successor, including the Trustee, to the Servicer as
servicer shall during the term of its service as servicer maintain in force (i)
a policy or policies of insurance covering errors and omissions in the
performance of its obligations as servicer hereunder and (ii) a fidelity bond in
respect of its officers, employees and agents to the same extent as the 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 Servicer pursuant to this
Article VIII, the Trustee shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the Certificate
Register, to Assured Guaranty and to each Rating Agency.
ARTICLE IX
THE TRUSTEE
Section 9.01 Duties of Trustee. (a) The Trustee, prior to the
occurrence of an Event of Default and after the curing or waiver of all Events
of Default which may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement. 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.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement.
(b) No provision of this Agreement shall be construed to relieve the
Trustee 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 shall be determined solely by
the express provisions of this Agreement, the Trustee 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, in
the absence of bad faith on the part of the Trustee, the Trustee 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 by the Depositor or the Servicer and which on
their face, do not contradict the requirements of this Agreement;
(ii) The Trustee (in its individual capacity) 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 (in its individual capacity) 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
(other than a default in payment to the Trustee) specified in clauses (a)
and (b) of Section 8.01 or an Event of Default under clauses (c), (d) and
(e) of Section 8.01 unless a Responsible Officer of the Trustee assigned
to and working in the Corporate Trust Office obtains actual knowledge of
such failure or event or any officer of the Trustee receives written
notice of such failure or event at its Corporate Trust Office from the
Servicer, the Depositor or any Certificateholder; and
(v) Except to the extent provided in Section 8.05, no provision in
this Agreement shall require the Trustee to expend or risk its own funds
(including, without limitation, the making of any Advance as successor
Servicer) or otherwise incur any personal financial liability in the
performance of any of its duties as Trustee hereunder, or in the exercise
of any of its rights or powers, if the Trustee shall have reasonable
grounds for believing that repayment of funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
Section 9.02 Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 9.01:
(i) The Trustee 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;
(ii) The Trustee 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) The Trustee shall be under no 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 reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee 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) The Trustee shall not 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, the Trustee shall not 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 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 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, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Agreement,
the Trustee may require reasonable indemnity against such expense or
liability or payment of such estimated expenses as a condition to so
proceeding; and
(vi) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys.
Section 9.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the execution
of, and the authentication of, the Certificates) shall be taken as the
statements of the Depositor or Servicer, as applicable, and the Trustee assumes
no responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Agreement or of the Certificates or any
Mortgage Loans save that the Trustee represents 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).
The Trustee shall not be accountable for the use or application by the Depositor
of funds paid to the Depositor in consideration of the assignment of the
Mortgage Loans hereunder by the Depositor, or for the use or application of any
funds paid to Subservicers or the Servicer in respect of the Mortgage Loans or
deposited into the Servicer Custodial Account, or any other account hereunder
(other than the Certificate Account) by the Servicer.
The Trustee shall at no 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 Servicer pursuant to Section 8.05 and
thereupon only for the acts or omissions of the successor 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 enforcement of any Mortgage Loan (other than if the Trustee shall assume the
duties of the Servicer pursuant to Section 8.05 and thereupon only for the acts
or omissions of the Trustee as successor Servicer); the compliance by the
Depositor or the 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 Servicer
or any loss resulting therefrom, it being understood that the Trustee 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 Servicer (other
than if the Trustee shall assume the duties of the Servicer pursuant to Section
8.05 and thereupon only for the acts or omissions of the Trustee as successor
Servicer), any Subservicer or any Mortgagor; any action of the Servicer (other
than if the Trustee shall assume the duties of the Servicer pursuant to Section
8.05 and thereupon only for the acts or omissions of the Trustee as successor
Servicer) or any Subservicer taken in the name of the Trustee; the failure of
the Servicer or any Subservicer to act or perform any duties required of it as
agent of the Trustee hereunder; or any action by the Trustee taken at the
instruction of the Servicer (other than if the Trustee shall assume the duties
of the Servicer pursuant to Section 8.05 and thereupon only for the acts or
omissions of the Trustee as successor Servicer); provided, however, that the
foregoing shall not relieve the Trustee 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 financing or
continuation statement 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 May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights it would have if it were not Trustee and may otherwise deal
with the Servicer, any Subservicer or any of their respective affiliates with
the same right it would have if it were not the Trustee.
Section 9.05 Eligibility Requirements for Trustee. The Trustee
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 and subject to
supervision or examination by Federal or State authority and (c) with respect to
every successor trustee hereunder either an institution (i) the long-term
unsecured debt obligations of which are rated at least "A" by Fitch and at least
"A2" by Xxxxx'x or (ii) whose serving as Trustee 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 or the 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 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. In case at any time the Trustee shall cease to be
eligible in accordance with the provision of this Section 9.05, the Trustee
shall resign immediately in the manner and with the effect specified in Section
9.06.
Section 9.06 Resignation and Removal of Trustee. The Trustee may at
any time resign and be discharged from the trust hereby created by giving
written notice thereof to the Servicer and mailing a copy of such notice to all
Holders of record. The Trustee shall also mail a copy of such notice of
resignation to each Rating Agency. Upon receiving such notice of resignation,
the Servicer shall use its best efforts to promptly appoint a mutually
acceptable successor Trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Trustee and one copy to the
successor Trustee. If no successor Trustee shall have been so appointed and
shall have accepted appointment within 30 days after the giving of such notice
of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If at any time the Trustee 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 Servicer, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Servicer
may remove the Trustee and appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Trustee 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 by written instrument or
instruments delivered to the Servicer and the Trustee; the Servicer shall
thereupon use its best efforts to appoint a mutually acceptable successor
Trustee in accordance with this Section 9.06.
Any resignation or removal of the Trustee 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 as
provided in Section 9.07.
Section 9.07 Successor Trustee. Any successor Trustee appointed as
provided in Section 9.06 shall execute, acknowledge and deliver to the Servicer
and to its predecessor Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor Trustee
shall become effective and such successor Trustee, 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 herein. The predecessor Trustee shall duly assign, transfer,
deliver and pay over to the successor Trustee 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 in the administration
hereof as may be reasonably requested by the successor Trustee and shall
thereupon be discharged from all duties and responsibilities under this
Agreement. All costs associated with the appointment of a successor Trustee
shall be paid by the predecessor Trustee to the Person that incurred them.
Without limiting the predecessor Trustee's obligation, if the predecessor
Trustee fails to pay such costs, such costs shall be reimbursed by the Trust;
provided, however, that if the predecessor Trustee has been terminated pursuant
to the third paragraph of Section 9.06, all reasonable expenses incurred in
complying with this Section 9.07 shall be reimbursed by the Trust to the Person
that incurred them.
No successor Trustee shall accept appointment as provided in this
Section 9.07 unless at the time of such appointment such successor Trustee shall
be eligible under the provisions of Section 9.05.
Upon acceptance of appointment by a successor Trustee as provided in
this Section 9.07, the Servicer shall cooperate to mail notice of the succession
of such Trustee hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register and to each Rating Agency. If the Servicer
fails to mail such notice within ten days after acceptance of appointment by the
successor Trustee, the successor Trustee shall cause such notice to be mailed at
the expense of the Servicer.
Section 9.08 Merger or Consolidation of Trustee. Any corporation or
banking association into which the Trustee 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
shall be a party, or any corporation or banking association succeeding to all or
substantially all of the corporate trust business of the Trustee, shall be the
successor of the Trustee 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.
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 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 Servicer and
the Trustee may consider necessary or desirable. If the 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.
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 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 Trustee may appoint one or
more authenticating agents ("Authenticating Agents") which shall be authorized
to act on behalf of the Trustee in authenticating Certificates. Initially, the
Authenticating Agent shall be Xxxxx Fargo Bank, N.A.. Wherever reference is made
in this Agreement to the authentication of Certificates by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent must be acceptable to the
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 Trustee or the Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Servicer. The Trustee may at any
time terminate the agency of any Authenticating Agent by giving written notice
of termination to such Authenticating Agent and to the 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 Trustee may appoint a successor
Authenticating Agent, shall give written notice of such appointment to the
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 Trustee's Fees and Expenses. The Trustee, as
compensation for its activities hereunder, shall be entitled to receive on each
Distribution Date an amount equal to the Trustee Fee for such Distribution Date
pursuant to Section 5.02(a). The Trustee and any director, officer, employee or
agent of the Trustee shall be indemnified by the Trust and held harmless against
any loss, liability or expense (including reasonable attorney's fees) (a)
incurred in connection with any claim or legal action relating to (i) this
Agreement, (ii) the Certificates, or (iii) the performance of any of the
Trustee's duties hereunder, other than any loss, liability or expense incurred
by reason of willful misfeasance, bad faith or gross negligence in the
performance of any of the Trustee's duties hereunder, (b) resulting from any tax
or information return which was prepared by, or should have been prepared by,
the Servicer and (c) arising out of the transfer of any ERISA Restricted
Certificate or the Residual Certificate not in compliance with ERISA. Such
indemnity shall survive the termination of this Agreement or the resignation or
removal of the Trustee hereunder. Without limiting the foregoing, except as
otherwise agreed upon in writing by the Depositor and the Trustee, and except
for any such expense, disbursement or advance as may arise from the Trustee's
gross negligence, bad faith or willful misconduct, the Trust shall reimburse the
Trustee for all reasonable expenses, disbursements and advances incurred or made
by the Trustee 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);
provided, however, that the Depositor and the Trustee intend to enter into a
separate agreement for custody-related services. Except as otherwise provided
herein, the Trustee shall not be entitled to payment or reimbursement for any
routine ongoing expenses incurred by the Trustee in the ordinary course of its
duties as Trustee, Certificate Registrar or Paying Agent hereunder or for any
other expenses.
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
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 Servicer. Subject to this Article
IX, the Trustee agrees to comply with the terms of each Custodial Agreement and
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.
Section 9.13 Paying Agents. The Trustee may appoint one or more
Paying Agents (each, a "Paying Agent") which shall be authorized to act on
behalf of the Trustee in making withdrawals from the Certificate Account and
distributions to Certificateholders as provided in Section 3.08 and Section
5.02. Wherever reference is made in this Agreement to the withdrawal from the
Certificate Account by the Trustee, such reference shall be deemed to include
such a withdrawal on behalf of the Trustee 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 Trustee or the furnishing of a statement to
Certificateholders by the Trustee, such reference shall be deemed to include
such a distribution or furnishing on behalf of the Trustee by a Paying Agent.
Each Paying Agent shall provide to the Trustee such information concerning the
Certificate Account as the Trustee shall request from time to time. Each Paying
Agent must be reasonably acceptable to the 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) 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 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 and to the Servicer; provided that the Paying Agent
has returned to the Certificate Account or otherwise accounted, to the
reasonable satisfaction of the Trustee, for all amounts it has withdrawn from
the Certificate Account. The Trustee may, upon prior written approval of the
Servicer, at any time terminate the agency of any Paying Agent by giving written
notice of termination to such Paying Agent and to the 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 Trustee may appoint, upon prior
written approval of the 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 Trustee 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 Trustee, not in its individual capacity but solely as Trustee 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
Trustee in the Certificates is made and intended not as a personal undertaking
or agreement by the Trustee but is made and intended for the purpose of binding
only the Trust.
Section 9.15 Trustee 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 without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and such proceeding instituted by the Trustee shall
be brought in its own name or in its capacity as Trustee. 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 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 by the Depositor or
Liquidation of All Mortgage Loans. Subject to Section 10.02, the respective
obligations and responsibilities of the Depositor, the Servicer and the Trustee
created hereby (other than the obligation of the Trustee 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 Trustee
pursuant to Sections 5.04(b) and 5.05(b)) shall terminate upon the last action
required to be taken by the Trustee on the Final Distribution Date pursuant to
this Article X following the earlier of (a) the purchase by the Depositor of all
Mortgage Loans and all REO Property remaining in the Trust Estate at a price
equal to the sum of (i) 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 (ii) below), (ii) the
fair market value of such REO Property, plus any Class Unpaid Interest Shortfall
for any Class of Certificates as well as 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
(iii) any Reimbursement Amount owed to the Trust pursuant to Section 2.04 or (b)
the final payment or other liquidation (or any advance with respect thereto) of
the last Mortgage Loan remaining in the Trust Estate or the disposition of all
REO Property.
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 Depositor to repurchase all of the Mortgage Loans
is conditioned upon (A) the aggregate Stated Principal Balance of the Mortgage
Loans as of such Final Distribution Date being less than 10% of the aggregate
Cut-off Date Pool Principal Balance and (B) the sum of clauses (a)(i) and (ii)
of the second preceding paragraph 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 REO Properties; provided, however, that this
clause (B) shall not apply to any purchase by the Depositor if, at the time of
the purchase, the Depositor 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 second preceding paragraph
will be determined by the Depositor 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 the fourth paragraph of this
Article X. If such right is exercised, the Trustee shall, promptly following
payment of the purchase price, release to the Depositor or its designee the
Mortgage Files pertaining to the Mortgage Loans being purchased.
Notice of any termination, specifying the Final Distribution Date
(which shall be a date that would otherwise be a Distribution Date) upon which
the Certificateholders may surrender their Certificates to the Trustee for
payment of the final distribution and for cancellation, shall be given promptly
by the Depositor (if exercising its right to purchase the assets of the Trust)
or by the Trustee (in any other case) by letter to Certificateholders and to
Assured Guaranty mailed not earlier than the 15th day and not later than the
25th day of the month next preceding the month of such final distribution
specifying (1) the Final Distribution Date upon which final payment of the
Certificates will be made upon presentation and surrender of Certificates at the
office or agency of the Trustee 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 Certificates at the office or agency of the Trustee therein
specified. If the Depositor is obligated to give notice to Certificateholders as
aforesaid, it shall give such notice to the Trustee and the Certificate
Registrar at the time such notice is given to Certificateholders. In the event
such notice is given by the Depositor, the Depositor shall deposit in the
Certificate Account on or before the Final 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 the Final Distribution Date equal
to the purchase price for the related assets of the Trust computed as above
provided together with a statement as to the amount to be distributed on each
Class of Certificates pursuant to the next succeeding paragraph. Not less than
five (5) Business Days prior to the Final Distribution Date, the Trustee shall
notify the Depositor of the amount of any unpaid Reimbursement Amount owed to
the Trust and the Depositor shall deposit such amount in the Certificate Account
not later than the Business Day preceding the Final Distribution Date.
Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to Assured Guaranty all amounts required to be
distributed pursuant to Section 5.02 hereof and to the Certificateholders of
each Class, in the order set forth in Section 5.02 hereof, on the Final
Distribution Date and in proportion to their respective Percentage Interests,
with respect to Certificateholders of the same Class, an amount equal to (I) as
to each Class of Certificates, the Class Certificate Balance thereof plus (a)
accrued interest thereon in the case of an interest bearing Certificate and (b)
the applicable Class PO Deferred Amount with respect to the Class 30-PO
Certificates, and (II) as to the Class A-R Certificate, the amounts, if any,
which remain on deposit (or are deemed to remain on deposit) in the Certificate
Account (other than the amounts retained to meet claims) after any distributions
to Assured Guaranty or pursuant to clause (I) above.
If all of the Certificateholders do not surrender their Certificates
for final payment and cancellation on or before the Final Distribution Date, the
Trustee shall on such date cause all funds in the Certificate Account not
distributed in final distribution to Certificateholders to continue to be held
by the Trustee in an Eligible Account for the benefit of such Certificateholders
and the Depositor (if it exercised its right to purchase the assets of the Trust
Estate) or the Trustee (in any other case) shall give a second written notice to
the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice all the applicable Certificates shall not have
been surrendered for cancellation, the Trustee may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact the remaining
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 the
Depositor exercises its purchase option as provided in Section 10.01, the Trust
shall be terminated in accordance with the following additional requirements,
unless the Trustee has 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 (i) result in the imposition of taxes on "prohibited transactions" of the
Trust as defined in Section 860F of the Code, or (ii) cause the Trust Estate to
fail to qualify as a REMIC at any time that any Certificates are outstanding:
(i) within 90 days prior to the Final Distribution Date set forth in
the notice given by the Depositor under Section 10.01, the Trustee shall
sell all of the assets of the Trust Estate to the Depositor for cash; and
(ii) the notice given by the Depositor or the Trustee pursuant to
Section 10.01 shall provide that such notice constitutes the adopting of a
plan of complete liquidation of the REMIC as of the date of such notice
(or, if earlier, the date on which such notice was mailed to
Certificateholders). The Trustee shall also specify such date in the final
tax return of the REMIC.
(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.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment. This Agreement may be amended from time to
time by the Depositor, the Servicer and the Trustee and with respect to
amendments affecting the rights or obligations of Assured Guaranty, with the
consent of Assured Guaranty, 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 the qualification of
the Trust Estate as a REMIC at all times that any Certificates are outstanding
or to avoid or minimize the risk of the imposition of any tax on the REMIC
pursuant to the Code that would be a claim against the Trust Estate, provided
that (a) the Trustee has 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 Senior Certificates,
the Class B-1 Certificates, the Class B-2 Certificates, the Class B-3
Certificates, the Class B-4 Certificates or the Class B-5 Certificates, as
evidenced by a letter from each Rating Agency rating such Certificates to such
effect, and (v) to reduce the percentage of the Cut-off Date Pool Principal
Balance at which the Depositor will have the option to purchase all the
remaining Mortgage Loans in accordance with Section 10.01, provided that such
reduction is considered necessary by the Depositor, as evidenced by an Officer's
Certificate delivered to the Trustee, to preserve the treatment of the transfer
of the Mortgage Loans to the Depositor by the Seller or to the Trust by the
Depositor as sale for accounting purposes, and (vi) 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 (without, in the case of the Class A-1 Certificates, giving effect
to the guaranty provided by Assured Guaranty).
This Agreement may also be amended from time to time by the
Depositor, the Servicer and the Trustee, with the consent of Assured Guaranty
(only with respect to amendments affecting the rights or obligations of Assured
Guaranty) 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 with an Opinion of Counsel to the effect that such amendment
would not subject the REMIC to any tax or cause the Trust Estate to fail to
qualify as a REMIC. Notwithstanding any other provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
have first received such Opinion of Counsel.
Promptly after the execution of any such amendment or consent the
Trustee shall furnish written notification of the substance of or a copy of such
amendment to each Certificateholder, to Assured Guaranty 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 Trustee may prescribe.
Section 11.02 Recordation of Agreement. 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
Servicer and at its expense on direction by the Trustee, who will act at the
direction of Holders of Certificates evidencing not less than 50% of all Voting
Rights, but only upon direction of the Trustee accompanied by 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.
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 Trustee 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 Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, 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 Trustee, 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 Trustee 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 CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT APPLICATION OF THE
CONFLICTS OF LAWS PROVISIONS THEREOF, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.05 Notices. All demands, notices, instructions,
directions, requests and communications required 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 Trustee may be delivered by facsimile and shall be
deemed effective upon receipt) to (a) in the case of the Depositor, Banc of
America Mortgage Securities, Inc., 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: General Counsel and Chief Financial Officer, (b) in
the case of the Servicer, Bank of America, N.A., 000 Xxxxxxxxxx Xxxxxxx,
Xxxxxxxxx, Xxx Xxxx 00000-0000, Attention: Servicing Manager, with a copy to:
Bank of America, N.A. 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: General Counsel and Chief Financial Officer, (c) in the case of the
Trustee, Xxxxx Fargo Bank, N.A., X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000,
Attention: BOAMS, Series 2005-12, and for overnight delivery purposes, Xxxxx
Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000,
Attention: BOAMS, Series 2005-12, with a copy to Xxxxx Fargo Bank, N.A., Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, 00000, Attention: BOAMS,
Series 2005-12, (d) in the case of Fitch, Fitch Ratings, Xxx Xxxxx Xxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attn: Residential Mortgage Surveillance Group; (e) in
the case of Moody's, Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attn: Residential Mortgage Monitoring Group; and (f) in
the case of Assured Guaranty, to Assured Guaranty Corp., 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Risk Management Department and
General Counsel (BOAMS 2005-12, Policy No. D-2005-140) (in each case in which
notice or other communication to Assured Guaranty refers to an Assured Guaranty
Default or a claim under the Policy or with respect to which failure on the part
of Assured Guaranty to respond shall be deemed to constitute consent or
acceptance, then such notice or other communication shall be marked to indicate
"URGENT MATERIAL ENCLOSED"); 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 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 Trustee 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 Trustee 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, within 15 days
after the receipt of a request by the Trustee in writing, a list, in such form
as the Trustee may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date for payment of
distributions to Certificateholders.
If either three or more Certificateholders or Assured Guaranty apply
in writing to the Trustee, 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 Trustee
shall, within five 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 Trustee. If such a list is as of a date more than
90 days prior to the date of receipt of such applicants' request, the Trustee
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 and Assured Guaranty, by receiving and
holding such list, agrees with the Certificate Registrar and the Trustee that
neither the Certificate Registrar nor the Trustee 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 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 Third Party Beneficiary. For so long as no Assured
Guaranty Default has occurred and is continuing, Assured Guaranty shall be a
third party beneficiary to this Agreement to the extent of its rights hereunder
and the rights of the Holders of the Class A-1 Certificates.
IN WITNESS WHEREOF, the Depositor, the Servicer 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 MORTGAGE
SECURITIES, INC.,
as Depositor
By:____________________________________
Name: Xxxx Xxxxxx
Title: Vice President
BANK OF AMERICA, N.A.,
as Servicer
By:____________________________________
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
XXXXX FARGO BANK, N.A.,
as Trustee
By:____________________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
STATE OF MARYLAND )
) ss.:
COUNTY OF BALTIMORE )
On the 29th day of December, 2005, before me, a notary public in and
for the State of Maryland, personally appeared Xxxxx X. Xxxxxx, known to me who,
being by me duly sworn, did depose and say that he is a 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.
____________________________________
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 29th day of December, 2005, before me, a notary public in and
for the State of North Carolina, personally appeared Xxxx Xxxxxx, known to me
who, being by me duly sworn, did depose and say that she is a Vice President of
Banc of America Mortgage Securities, Inc. a Delaware corporation, 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 corporation.
____________________________________
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF )
) ss.:
COUNTY OF )
On the 29th day of December, 2005, before me, a notary public in and
for the State of __________, personally appeared Xxxxx X. Xxxxxx, known to me
who, being by me duly sworn, did depose and say that she is a Senior Vice
President of Bank of America, N.A., 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.
____________________________________
Notary Public
[Notarial Seal]
My commission expires ____________.
EXHIBIT A-A-1
[FORM OF FACE OF CLASS A-1 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class 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.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class A-1
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $20,445,000.00
Pass-Through Rate: 5.750%
CUSIP No.: 05949C PX 8
ISIN No.: US05949CPX82
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Mortgage Securities, Inc. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 29, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Bank of America, N.A., as servicer
(the "Servicer"), and Xxxxx Fargo Bank, N.A., 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 Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
The Class A-1 Certificates will be entitled to the benefits of a Financial
Guaranty Insurance Policy issued by Assured Guaranty Corp. to the extent
described 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.
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 Trustee.
* * *
EXHIBIT A-A-2
[FORM OF FACE OF CLASS A-2 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class 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 REPRESENTS 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") AND CERTAIN OTHER ASSETS.
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.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class A-2
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $81,828,000.00
Pass-Through Rate: Floating
CUSIP No.: 05949C PY 6
ISIN No.: US05949CPY65
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Mortgage Securities, Inc. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 29, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Bank of America, N.A., as servicer
(the "Servicer"), and Xxxxx Fargo Bank, N.A., 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 Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
The Pass-Through Rate applicable with respect to each Distribution Date
shall be determined as provided 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.
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 Trustee.
* * *
EXHIBIT A-A-3
[FORM OF FACE OF CLASS A-3 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class 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.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class A-3
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $14,232,000.00
Pass-Through Rate: Inverse Floating
CUSIP No.: 05949C PZ 3
ISIN No.: US05949CPZ31
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Mortgage Securities, Inc. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 29, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Bank of America, N.A., as servicer
(the "Servicer"), and Xxxxx Fargo Bank, N.A., 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 Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
The Pass-Through Rate applicable with respect to each Distribution Date
shall be determined as provided 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.
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 Trustee.
* * *
EXHIBIT A-A-4
[FORM OF FACE OF CLASS A-4 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class A-4
[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.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class A-4
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $132,775,000.00
Pass-Through Rate: 5.750%
CUSIP No.: 05949C QA 7
ISIN No.: US05949CQA70
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Mortgage Securities, Inc. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 29, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Bank of America, N.A., as servicer
(the "Servicer"), and Xxxxx Fargo Bank, N.A., 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 Servicer or the Trustee
referred to below 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 Trustee.
* * *
EXHIBIT A-A-5
[FORM OF FACE OF CLASS A-5 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class A-5
[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.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class A-5
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $4,104,000.00
Pass-Through Rate: 5.750%
CUSIP No.: 05949C QB 5
ISIN No.: US05949CQB53
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Mortgage Securities, Inc. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 29, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Bank of America, N.A., as servicer
(the "Servicer"), and Xxxxx Fargo Bank, N.A., 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 Servicer or the Trustee
referred to below 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 Trustee.
* * *
EXHIBIT A-A-6
[FORM OF FACE OF CLASS A-6 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class A-6
[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.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class A-6
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $320,008.00
CUSIP No.: 05949C QC 3
ISIN No.: US05949CQC37
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Mortgage Securities, Inc. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 29, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Bank of America, N.A., as servicer
(the "Servicer"), and Xxxxx Fargo Bank, N.A., 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 Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This Class A-6 Certificate represents the right to receive principal only.
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 Trustee.
* * *
EXHIBIT A-A-7
[FORM OF FACE OF CLASS A-7 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class A-7
[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.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class A-7
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $27,032,000.00
Pass-Through Rate: 5.750%
CUSIP No.: 05949C QD 1
ISIN No.: US05949CQD10
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Mortgage Securities, Inc. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 29, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Bank of America, N.A., as servicer
(the "Servicer"), and Xxxxx Fargo Bank, N.A., 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 Servicer or the Trustee
referred to below 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 Trustee.
* * *
EXHIBIT A-A-8
[FORM OF FACE OF CLASS A-8 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class A-8
[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").
AFTER THE SENIOR CREDIT SUPPORT DEPLETION DATE, THE PRINCIPAL PORTION OF
REALIZED LOSSES ALLOCATED TO THE CLASS A-7 CERTIFICATES WILL BE BORNE BY THE
CLASS A-8 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
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.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class A-8
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $3,003,000.00
Pass-Through Rate: 5.750%
CUSIP No.: 05949C QE 9
ISIN No.: US05949CQE92
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Mortgage Securities, Inc. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 29, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Bank of America, N.A., as servicer
(the "Servicer"), and Xxxxx Fargo Bank, N.A., 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 Servicer or the Trustee
referred to below 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 Trustee.
* * *
EXHIBIT A-A-R
[FORM OF FACE OF CLASS A-R CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class A-R
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
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 CLASS A-R CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW WHICH IS SIMILAR
TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), OR A PERSON ACTING ON BEHALF OF
OR INVESTING ASSETS OF A PLAN.
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 RESIDUAL CERTIFICATE IN VIOLATION OF
SUCH RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN
THE PURPORTED TRANSFEREE.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class 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 a pool of mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $100.00
Pass-Through Rate: 5.750%
CUSIP No.: 05949C QF 6
ISIN No.: US05949CQF67
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
Mortgage Securities, Inc. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 29, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Bank of America, N.A., as servicer
(the "Servicer"), and Xxxxx Fargo Bank, N.A., 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 Servicer or the Trustee
referred to below or any of their respective affiliates. 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
Certificate Account will be made only upon presentment and surrender of this
Class A-R Certificate at the Corporate Trust Office.
Each Person who has or who acquires this Class 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 A-R
Certificate are expressly subject to the following provisions: (i) each Person
holding or acquiring this Class A-R Certificate shall be a Permitted Transferee
and shall promptly notify the Trustee of any change or impending change in its
status as a Permitted Transferee; (ii) no Person shall acquire an ownership
interest in this Class A-R Certificate unless such ownership interest is a pro
rata undivided interest; (iii) in connection with any proposed transfer of this
Class A-R Certificate, the Trustee 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; (iv) notwithstanding the delivery of an
affidavit by a proposed transferee under clause (iii) above, if a Responsible
Officer of the Trustee has actual knowledge that the proposed transferee is not
a Permitted Transferee, no transfer of any Ownership Interest in this Residual
Certificate to such proposed transferee shall be effected; (v) this Residual
Certificate may not be purchased by or transferred to any Person that is not a
U.S. Person, unless (A) such Person holds this Residual Certificate in
connection with the conduct of a trade or business within the United States and
furnishes the transferor and the Trustee with an effective Internal Revenue
Service Form W-8ECI (or any successor thereto) or (B) the transferee delivers to
both the transferor and the Trustee 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 Residual Certificate will not be
disregarded for federal income tax purposes; (vi) any attempted or purported
transfer of this Class 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 A-R Certificate in violation of such restrictions, then the
Trustee, based on information provided to the Trustee by the 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.
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 Trustee.
* * *
EXHIBIT A-30-IO
[FORM OF FACE OF CLASS 30-IO CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class 30-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.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class 30-IO
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Notional
Amount of this
Certificate
("Denomination"): $
Initial Notional
Amount of this Class: $3,526,940.00
Pass-Through Rate: 5.750%
CUSIP No.: 05949C QG 4
ISIN No.: US05949CQG41
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Notional Amount of the Class to which this
Certificate belongs) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Banc of America Mortgage
Securities, Inc. (the "Depositor"). The Trust was created pursuant to a Pooling
and Servicing Agreement, dated December 29, 2005 (the "Pooling and Servicing
Agreement"), among the Depositor, Bank of America, N.A., as servicer (the
"Servicer"), and Xxxxx Fargo Bank, N.A., 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 30-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 Servicer or the Trustee referred to
below 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 Trustee.
* * *
EXHIBIT A-30-PO
[FORM OF FACE OF CLASS 30-PO CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class 30-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.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class 30-PO
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $7,149,445.00
CUSIP No.: 05949C QH 2
ISIN No.: US05949CQH24
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Mortgage Securities, Inc. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 29, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Bank of America, N.A., as servicer
(the "Servicer"), and Xxxxx Fargo Bank, N.A,, 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 Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This Class 30-PO Certificate represents the right to receive principal
only.
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 Trustee.
* * *
EXHIBIT B-1
[FORM OF FACE OF CLASS B-1 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class 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 THE SENIOR CERTIFICATES
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class B-1
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $5,406,000.00
Pass-Through Rate: 5.750%
CUSIP No.: 05949C QJ 8
ISIN No.: US05949CQJ89
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Mortgage Securities, Inc. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 29, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Bank of America, N.A., as servicer
(the "Servicer"), and Xxxxx Fargo Bank, N.A., 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 Servicer or the Trustee
referred to below 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 Trustee.
* * *
EXHIBIT B-2
[FORM OF FACE OF CLASS B-2 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class 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 THE SENIOR CERTIFICATES
AND THE CLASS B-1 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class B-2
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,652,000.00
Pass-Through Rate: 5.750%
CUSIP No.: 05949C QK 5
ISIN No.: US05949CQK52
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Mortgage Securities, Inc. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 29, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Bank of America, N.A., as servicer
(the "Servicer"), and Xxxxx Fargo Bank, N.A., 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 Servicer or the Trustee
referred to below 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 Trustee.
* * *
EXHIBIT B-3
[FORM OF FACE OF CLASS B-3 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class 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 THE SENIOR CERTIFICATES,
THE CLASS B-1 CERTIFICATES AND THE CLASS B-2 CERTIFICATES AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class B-3
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $901,000.00
Pass-Through Rate: 5.750%
CUSIP No.: 05949C QL 3
ISIN No.: US05949CQL36
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Mortgage Securities, Inc. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 29, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Bank of America, N.A., as servicer
(the "Servicer"), and Xxxxx Fargo Bank, N.A., 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 Servicer or the Trustee
referred to below 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 Trustee.
* * *
EXHIBIT B-4
[FORM OF FACE OF CLASS B-4 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class 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 THE SENIOR CERTIFICATES,
THE CLASS B-1 CERTIFICATES, THE CLASS B-2 CERTIFICATES AND THE CLASS B-3
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.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE TRUSTEE EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON
BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH
PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF FUNDS USED TO
PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH
TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
("PTE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE IS NO PLAN WITH
RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES AND LIABILITIES
FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF SUCH PLAN AND ALL OTHER PLANS
MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN SECTION
V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE
TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS
ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60) AT THE DATE OF ACQUISITION AND
ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE PLANS TO WHICH PTE
95-60 APPLIES, OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY
TO THE TRUSTEE AND THE SERVICER, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF
THIS CERTIFICATE BY OR ON BEHALF OF SUCH PLAN WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE SERVICER OR THE
TRUSTEE TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND
SERVICING AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST
THEREIN SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE
REPRESENTATION LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON
SHALL HAVE PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL
REFERRED TO IN THE PRECEDING SENTENCE TO THE TRUSTEE. THE POOLING AND SERVICING
AGREEMENT PROVIDES THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF
THESE TRANSFER RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY
PURPORTED TRANSFEREE.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class B-4
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $601,000.00
Pass-Through Rate: 5.750%
CUSIP No.: 05949C QM 1
ISIN No.: US05949CQM19
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Mortgage Securities, Inc. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 29, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Bank of America, N.A., as servicer
(the "Servicer"), and Xxxxx Fargo Bank, N.A., 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 Servicer or the Trustee
referred to below or any of their respective affiliates. 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 Trustee 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 Trustee 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
Trustee or the Depositor and (ii) the Trustee 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 Trustee 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 Sellers, their affiliates or both. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee 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 Trustee.
* * *
EXHIBIT B-5
[FORM OF FACE OF CLASS B-5 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class 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 THE SENIOR CERTIFICATES,
THE CLASS B-1 CERTIFICATES, THE CLASS B-2 CERTIFICATES, THE CLASS B-3
CERTIFICATES AND THE CLASS B-4 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.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE TRUSTEE EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON
BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH
PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF FUNDS USED TO
PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH
TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
("PTE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE IS NO PLAN WITH
RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES AND LIABILITIES
FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF SUCH PLAN AND ALL OTHER PLANS
MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN SECTION
V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE
TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS
ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60) AT THE DATE OF ACQUISITION AND
ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE PLANS TO WHICH PTE
95-60 APPLIES, OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY
TO THE TRUSTEE AND THE SERVICER, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF
THIS CERTIFICATE BY OR ON BEHALF OF SUCH PLAN WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE SERVICER OR THE
TRUSTEE TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND
SERVICING AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST
THEREIN SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE
REPRESENTATION LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON
SHALL HAVE PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL
REFERRED TO IN THE PRECEDING SENTENCE TO THE TRUSTEE. THE POOLING AND SERVICING
AGREEMENT PROVIDES THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF
THESE TRANSFER RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY
PURPORTED TRANSFEREE.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class B-5
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $451,000.00
Pass-Through Rate: 5.750%
CUSIP No.: 05949C QN 9
ISIN No.: US05949CQN91
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Mortgage Securities, Inc. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 29, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Bank of America, N.A., as servicer
(the "Servicer"), and Xxxxx Fargo Bank, N.A., 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 Servicer or the Trustee
referred to below or any of their respective affiliates. 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 Trustee 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 Trustee 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
Trustee or the Depositor and (ii) the Trustee 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 Trustee 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 Sellers, their affiliates or both. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee 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 Trustee.
* * *
EXHIBIT B-6
[FORM OF FACE OF CLASS B-6 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class 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 THE SENIOR CERTIFICATES,
THE CLASS B-1 CERTIFICATES, THE CLASS B-2 CERTIFICATES, THE CLASS B-3
CERTIFICATES, THE CLASS B-4 CERTIFICATES AND THE CLASS B-5 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.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE TRUSTEE EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON
BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH
PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF FUNDS USED TO
PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH
TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
("PTE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE IS NO PLAN WITH
RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES AND LIABILITIES
FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF SUCH PLAN AND ALL OTHER PLANS
MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN SECTION
V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE
TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS
ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60) AT THE DATE OF ACQUISITION AND
ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE PLANS TO WHICH PTE
95-60 APPLIES, OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY
TO THE TRUSTEE AND THE SERVICER, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF
THIS CERTIFICATE BY OR ON BEHALF OF SUCH PLAN WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE SERVICER OR THE
TRUSTEE TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND
SERVICING AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST
THEREIN SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE
REPRESENTATION LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON
SHALL HAVE PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL
REFERRED TO IN THE PRECEDING SENTENCE TO THE TRUSTEE. THE POOLING AND SERVICING
AGREEMENT PROVIDES THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF
THESE TRANSFER RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY
PURPORTED TRANSFEREE.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2005-12
Class B-6
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-off Date: December 1, 2005
First Distribution Date: January 25, 2006
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $450,575.00
Pass-Through Rate: 5.750%
CUSIP No.: 05949C QP 4
ISIN No.: US05949CQP40
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Mortgage Securities, Inc. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated December 29, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, Bank of America, N.A., as servicer
(the "Servicer"), and Xxxxx Fargo Bank, N.A., 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 Servicer or the Trustee
referred to below or any of their respective affiliates. 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 Trustee 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 Trustee 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
Trustee or the Depositor and (ii) the Trustee 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 Trustee 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 Sellers, their affiliates or both. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee 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 Trustee.
* * *
EXHIBIT C
[FORM OF REVERSE OF ALL CERTIFICATES]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as Banc of America Mortgage Securities, Inc. 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 Trustee 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 Trustee.
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. The Record Date applicable to each Distribution Date is the
last Business Day of the month next preceding the month of such Distribution
Date.
On each Distribution Date, the Trustee 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 Regular Certificate, by wire transfer or by such
other means of payment as such Certificateholder and the Trustee 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 Section 5.02 of the Pooling and Servicing Agreement; provided, however,
that in the case of the Class A-1 Certificates, distributions of principal to
which such Class is entitled will be made to the Holders of such Class as
described in Section 5.10 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 Trustee 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 Trustee and the rights of the Certificateholders under the
Pooling and Servicing Agreement at any time by the Depositor, the Servicer and
the Trustee 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 Trustee upon surrender of this Certificate
for registration of transfer at the Corporate Trust Office accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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. As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest, as requested by the Holder surrendering the
same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer, the Certificate Registrar and the Trustee and
any agent of the Depositor, the Servicer, the Certificate Registrar 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 Servicer, the
Certificate Registrar, the Trustee or any such agent shall be affected by any
notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
is less than 10% of the aggregate Cut-off Date Principal Balance, the Depositor
will have the option to repurchase, in whole, from the Trust all remaining
Mortgage Loans and all property acquired in respect of such Mortgage Loans at a
purchase price determined as provided in the Pooling and Servicing Agreement.
The 10% may be reduced by an amendment to the Pooling and Servicing Agreement
without Certificateholder consent under certain conditions set forth in the
Pooling and Servicing Agreement. In the event that no such optional repurchase
occurs, 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.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
XXXXX FARGO BANK, N.A.,
as Trustee
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 Trustee
By _______________________________________
Authorized Signatory
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 Fund.
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.
EXHIBIT D
MORTGAGE LOAN SCHEDULE
EXHIBIT E
REQUEST FOR RELEASE OF DOCUMENTS
[date]
To: Xxxxx Fargo Bank, N.A.
0000 00xx Xxxxxx, X.X.
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Inventory Control (BoAMS 2005-12)
Re: The Pooling and Servicing Agreement dated December 29, 2005, among
Banc of America Mortgage Securities, Inc., as Depositor, Bank of
America, N.A., as Servicer, and Xxxxx Fargo Bank, N.A., 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 Bank of
America, N.A.)
Issuer:__________________________________
Address:_________________________________
_________________________________________
Date:____________________________________
Custodian
---------
Xxxxx Fargo Bank, N.A.
Please acknowledge the execution of the above request by your signature and date
below:
__________________________________ _______________
Signature Date
Documents returned to Custodian:
__________________________________ _______________
Custodian Date
EXHIBIT F
FORM OF CERTIFICATION OF ESTABLISHMENT OF ACCOUNT
[Date]
[_______________] hereby certifies that it has established a [__________]
Account pursuant to Section [________] of the Pooling and Servicing Agreement,
dated December 29, 2005, among Banc of America Mortgage Securities, Inc., as
Depositor, Bank of America, N.A., as Servicer, and Xxxxx Fargo Bank, N.A., as
Trustee.
[_______________],
By: ___________________________________________
Name:__________________________________________
Title:_________________________________________
EXHIBIT G-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services - BoAMS 2005-12
Re: Banc of America Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 2005-12, Class ___,
having an initial aggregate Certificate Balance as of
December 29, 2005 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 December 29, 2005, among Banc of America Mortgage Securities,
Inc., as Depositor, Bank of America, N.A., as Servicer, and Xxxxx Fargo Bank,
N.A., 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
Trustee, 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 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:______________________________________
EXHIBIT G-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services - BoAMS 2005-12
Re: Banc of America Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 2005-12, Class ___,
having an initial aggregate Certificate Balance as of
December 29, 2005 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 December 29, 2005, among Banc of America
Mortgage Securities, Inc., as Depositor, Bank of America, N.A., as Servicer, and
Xxxxx Fargo Bank, N.A., 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 Trustee, 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 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:______________________________________
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:______________________________________
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") and Xxxxx Fargo Bank, N.A., as Trustee, 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.
------------------------
(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.
___ 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 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,
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
Yes No Transferred 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:_______________________________________
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") and Xxxxx Fargo Bank, N.A., as Trustee, 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).
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
Yes No Transferred 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 or Adviser
By:_________________________________________
Name:_______________________________________
EXHIBIT G-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services - BoAMS 2005-12
Re: Banc of America Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 2005-12, Class ___,
having an initial aggregate Certificate Principal
Balance as of December 29, 2005 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 December 29, 2005, among Banc of
America Mortgage Securities, Inc., as Depositor, Bank of America, N.A., as
Servicer, and Xxxxx Fargo Bank, N.A., 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 Trustee, 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
Trustee is obligated so 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 Trustee 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 Trustee 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 Trustee or the Depositor and (ii) the Trustee 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 Trustee 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 Sellers, 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.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON
BEHALF OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN
INDIVIDUAL RETIREMENT ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR ANY FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A
"PLAN"), MAY RESULT IN "PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF
ERISA, THE CODE OR SIMILAR LAW. TRANSFER OF THIS CERTIFICATE WILL NOT BE
MADE UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (I) A
REPRESENTATION LETTER, IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE,
STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF, ANY SUCH PLAN
OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH PURCHASE OR (B) IF IT
IS AN INSURANCE COMPANY, THAT THE SOURCE OF FUNDS USED TO PURCHASE THIS
CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS
DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
("PTE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE IS NO BENEFIT
PLAN WITH RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES
AND LIABILITIES FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF SUCH BENEFIT
PLAN AND ALL OTHER BENEFIT PLANS MAINTAINED BY THE SAME EMPLOYER (OR
AFFILIATE THEREOF AS DEFINED IN SECTION V(A)(1) OF PTE 95-60) OR BY THE
SAME EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE TOTAL OF ALL RESERVES AND
LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS ARE DETERMINED UNDER
SECTION I(A) OF PTE 95-60) AT THE DATE OF ACQUISITION AND ALL PLANS THAT
HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE PLANS TO WHICH PTE 95-60
APPLIES, OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY
TO THE TRUSTEE AND THE SERVICER, TO THE EFFECT THAT THE PURCHASE OR
HOLDING OF THIS CERTIFICATE BY OR ON BEHALF OF SUCH PLAN WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE
MEANING OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW AND WILL NOT
SUBJECT THE DEPOSITOR, THE SERVICER OR THE TRUSTEE TO ANY OBLIGATION IN
ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT. EACH
PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE
DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION
LETTER REFERRED TO IN THE PRECEDING SENTENCE UNLESS SUCH PERSON SHALL HAVE
PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL REFERRED TO
IN THE PRECEDING SENTENCE TO THE TRUSTEE. THE POOLING AND SERVICING
AGREEMENT PROVIDES THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION
OF THESE TRANSFER RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO
RIGHTS IN ANY PURPORTED TRANSFEREE.
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
(e) 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
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:_______________________________________
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:______________________________________
EXHIBIT H
FORM OF TRANSFEREE REPRESENTATION LETTER
FOR BENEFIT PLAN-RESTRICTED CERTIFICATES
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services - BoAMS 2005-12
Re: Banc of America Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 2005-12, Class ___,
having an initial aggregate Certificate Principal
Balance as of December 29, 2005 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 December 29, 2005, among Banc of
America Mortgage Securities, Inc., as Depositor, Bank of America, N.A., as
Servicer, and Xxxxx Fargo Bank, N.A., 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
Trustee, either that:
(a) it is not, and is not acting on behalf of, an employee benefit plan or
arrangement, including an individual retirement account, subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), the Internal
Revenue Code of 1986, as amended (the "Code"), or any federal, state or local
law ("Similar Law") which is similar to ERISA or the Code (collectively, a
"Plan"), and it is not using the assets of any such Plan to effect the purchase
of the Transferred Certificates; or
(b) it is an insurance company and the source of funds used to purchase
the Transferred Certificates is an "insurance company general account" (as
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTE
95-60"), 60 Fed. Reg. 35925 (July 12, 1995)), there is no Plan with respect to
which the amount of such general account's reserves and liabilities for the
contract(s) held by or on behalf of such Plan and all other Plans maintained by
the same employer (or affiliate thereof as defined in Section V(a)(1) of PTE
95-60) or by the same employee organization exceeds 10% of the total of all
reserves and liabilities of such general account (as such amounts are determined
under Section I(a) of PTE 95-60) at the date of acquisition and all Plans that
have an interest in such general account are Plans to which PTE 95-60 applies.
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:_______________________________________
EXHIBIT I
FORM OF AFFIDAVIT REGARDING TRANSFER OF
RESIDUAL CERTIFICATE PURSUANT TO SECTION 6.02
Banc of America Mortgage Securities, Inc.
Mortgage Pass-Through Certificates,
Series 2005-12
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 A-R Certificate (the
"Residual Certificate") issued pursuant to the Pooling and Servicing Agreement,
dated December 29, 2005, (the "Agreement"), relating to the above-referenced
Series, by and among Banc of America Mortgage Securities, Inc., as depositor
(the "Depositor"), Bank of America, N.A., as servicer, and Xxxxx Fargo Bank,
N.A., 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
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.
7. The Transferee historically has paid its debts as they have become due.
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's nominee is
______________.
10. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
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
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
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,
including an individual retirement account, subject to ERISA, the Code or any
federal, state or local law which is similar to ERISA or the Code, and the
Transferee is not acting on behalf of such a plan or arrangement.
* * *
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
______________, ____
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
(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.
EXHIBIT J
CONTENTS OF THE SERVICER MORTGAGE FILE
1. Copies of Mortgage Loans Documents.
2. Residential loan application.
3. Mortgage Loan closing statement.
4. Verification of employment and income, if required.
5. Verification of acceptable evidence of source and amount of downpayment.
6. Credit report on Mortgagor, in a form acceptable to either FNMA or FHLMC.
7. Residential appraisal report.
8. Photograph of the Mortgaged Property.
9. Survey of the Mortgaged Property, unless a survey is not required by the
title insurer.
10. Copy of each instrument necessary to complete identification of any
exception set forth in the exception schedule in the title policy, i.e.,
map or plat, restrictions, easements, home owner association declarations,
etc.
11. Copies of all required disclosure statements.
12. If applicable, termite report, structural engineer's report, water
potability and septic certification.
13. Sales Contract, if applicable.
14. The Primary Insurance Policy or certificate of insurance or an electronic
notation of the existence of such policy, where required pursuant to the
Agreement.
15. Evidence of electronic notation of the hazard insurance policy, and if
required by law, evidence of the flood insurance policy.
EXHIBIT K
FORM OF SPECIAL SERVICING AGREEMENT
-----------------------------------
This Special Servicing Agreement (the "Agreement") is made and entered
into as of ___________________, between Bank of America, N.A. (the "Servicer")
and ___________________ (the "Loss Mitigation Advisor").
PRELIMINARY STATEMENT
_________________ (the "Purchaser") is the holder of the entire interest
in Banc of America Mortgage Securities, Inc.; Mortgage Pass-Through
Certificates, Series ______, Class ____ (the "Class B Certificates"). The Class
B Certificates were issued pursuant to a Pooling and Servicing Agreement dated
___________________among Banc of America Mortgage Securities, Inc., as depositor
(the "Depositor"), the Servicer, and Xxxxx Fargo Bank, N.A., as Trustee.
The Purchaser has requested the Servicer to engage the Loss Mitigation
Advisor, at the Purchaser's expense, to assist the Servicer with respect to
default management and reporting situations for the benefit of the Purchaser.
In consideration of the mutual agreements herein contained, the receipt
and sufficiency of which are hereby acknowledged, the Servicer hereby engages
the Loss Mitigation Advisor to provide advice in connection with default
management and reporting situations with respect to defaulted loans, including
providing to the Servicer recommendations with respect to foreclosures, the
acceptance of so-called short payoffs, deeds in lieu of or in aid of foreclosure
and deficiency notes, as well as with respect to the sale of REO properties. The
Loss Mitigation Advisor hereby accepts such engagement, and acknowledges that
its fees will be paid by the Purchaser and not the Servicer, and that it will
not look to the Servicer for financial remuneration. It is the intent of the
parties to this Agreement that the services of the Loss Mitigation Advisor are
provided without fee to the Servicer for the benefit of the Purchaser for the
life of the Class B Certificates.
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 following meanings:
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a day
on which banking institutions in the State of New York are required or
authorized by law or executive order to be closed.
Commencement of Foreclosure: The first official action required under
local law in order to commence foreclosure proceedings or to schedule a
trustee's sale under a deed of trust, including (i) in the case of a mortgage,
any filing or service of process necessary to commence an action to foreclose,
or (ii) in the case of a deed of trust, the posting, publishing, filing or
delivery of a notice of sale.
Delay of Foreclosure: The postponement for more than three Business Days
of the scheduled sale of Mortgaged Property to obtain satisfaction of a Mortgage
Loan.
Loss Mitigation Advisor: ______________.
Purchaser: _______________________, or the holder of record of the Class B
Certificates.
Short Payoff: Liquidation of a Mortgage Loan at less than the full amount
of the outstanding balance of the Mortgage Loan plus advances and costs through
a negotiated settlement with the borrower, which may include a deed-in-lieu of
foreclosure or sale of the property or of the promissory note secured by the
collateral property to a third party, in either case with or without a
contribution toward any resulting deficiency by the borrower.
Section 1.02. Definitions Incorporated by Reference.
All capitalized terms not otherwise defined in this Agreement shall have
the meanings assigned in the Pooling and Servicing Agreements.
ARTICLE II
SPECIAL SERVICING PROCEDURES
Section 2.01. Reports and Notices.
(a) In connection with the performance of its duties under the Pooling and
Servicing Agreement relating to the realization upon defaulted Mortgage Loans,
the Servicer shall use reasonable efforts to provide to the Loss Mitigation
Advisor with the following notices and reports. All such notices and reports may
be sent to the Loss Mitigation Advisor by telecopier, electronic mail, express
mail or regular mail.
(i) The Servicer shall within five Business Days after each
Distribution Date either: (A) provide to the Loss Mitigation Advisor a
written or electronic report, using the same methodology and calculations
as in its standard servicing reports, indicating for the trust fund formed
by the Pooling and Servicing Agreement, the number of Mortgage Loans that
are (1) sixty days delinquent, (2) ninety days or more delinquent, (3) in
foreclosure or (4) real estate owned (REO), and indicating for each such
Mortgage Loan the loan number, whether the loan is in bankruptcy or paying
under the terms of a repayment plan, the reason for default, and
outstanding principal balance; or (B) provide the information detailed in
(A) to a data service provider of the Loss Mitigation Advisor's choice in
an electronic format acceptable to that data service provider. Provision
of the information to a service provider other than that specified by the
Loss Mitigation Advisor is acceptable.
(ii) Prior to a Delay of Foreclosure in connection with any Mortgage
Loan, the Servicer shall provide the Loss Mitigation Advisor with a notice
of such proposed and imminent delay, stating the loan number, the
aggregate amount owing under the Mortgage Loan, and the reason and
justification for delaying foreclosure action. All notices and supporting
documentation pursuant to this subsection may be provided via telecopier,
express mail or electronic mail.
(iii) Prior to accepting any Short Payoff in connection with any
Mortgage Loan, the Servicer shall provide the Loss Mitigation Advisor with
a notice of such proposed and imminent Short Payoff, stating the loan
number, the aggregate amount owing under the Mortgage Loan, and the
justification for accepting the proposed Short Payoff. Such notice may be
sent by telecopier, express mail, electronic mail or regular mail.
(iv) Within five (5) business days of each Distribution Date, the
Servicer shall provide the Loss Mitigation Advisor with a report listing
each loan that has resulted in a realized loss that has been reported to
the trustee. Such report shall specify the loan number, the outstanding
principal balance of the loan upon its liquidation, the realized loss, and
the following components of realized loss: foreclosure costs, advances,
mortgage insurance proceeds, marketing and property rehabilitation costs,
and other costs. Such report may be provided by telecopier, express mail,
regular mail or electronic mail. The Loss Mitigation Advisor shall have at
least ten (10) business days in which to respond with reasonable questions
or requests for additional information regarding the amounts reported as
realized losses, and the Servicer shall within five (5) business days of
receipt of the Loss Mitigation Advisor's questions or additional
information requests provide responses to such questions and requests.
(v) Within five (5) business days of receipt by the Servicer of an
offer to acquire an REO property at an amount that is more than 15% below
the most recent market valuation of that property obtained by the Servicer
(or if no such valuation has been obtained, the appraisal used in
connection with the originating of the related Mortgage Loan), the
Servicer shall notify the Loss Mitigation Advisor of such offer and shall
provide a justification for accepting such offer, if that is the
Servicer's recommendation.
(vi) Within five (5) business days of receipt by the Servicer that a
claim filed for mortgage insurance, or any part thereof, has been rejected
by the mortgage insurance provider, the Servicer shall provide a copy of
the rejected claim with explanations for the item or items rejected to the
Loss Mitigation Advisor.
(vii) Within five (5) business days of providing the trustee with
any notice regarding a mortgage loan substitution, loan modification, or
loan repurchase, the Servicer shall provide the Loss Mitigation Advisor
with a copy of the notice.
(b) If requested by the Loss Mitigation Advisor, the Servicer shall make
its servicing personnel available during its normal business hours to respond to
reasonable inquiries, in writing by facsimile transmission, express mail or
electronic mail, by the Loss Mitigation Advisor in connection with any Mortgage
Loan identified in a report under subsection 2.01 (a)(i), (a)(ii), (a)(iii) or
(a)(iv) which has been given to the Loss Mitigation Advisor; provided that the
Servicer shall only be required to provide information that is readily
accessible to their servicing personnel.
(c) In addition to the foregoing, the Servicer shall provide to the Loss
Mitigation Advisor such information as the Loss Mitigation Advisor may
reasonably request concerning each Mortgage Loan that is at least sixty days
delinquent and each Mortgage Loan which has become real estate owned, provided
that the Servicer shall only be required to provide information that is readily
accessible to its servicing personnel.
(d) With respect to all Mortgage Loans which are serviced at any time by
the Servicer through a subservicer, the Servicer shall be entitled to rely for
all purposes hereunder, including for purposes of fulfilling its reporting
obligations under this Section 2.01, on the accuracy and completeness of any
information provided to it by the applicable subservicer.
Section 2.02. Loss Mitigation Advisor's Recommendations With Respect to
Defaulted Loans.
(a) All parties to this Agreement acknowledge that the Loss Mitigation
Advisor's advice is made in the form of recommendations, and that the Loss
Mitigation Advisor does not have the right to direct the Servicer in performing
its duties under the Pooling and Servicing Agreement. The Servicer may, after
review and analysis of the Loss Mitigation Advisor's recommendation, accept or
reject it, in the Servicer's sole discretion, subject to the standards of the
Servicer to protect the interest of the Certificateholders set forth in the
Pooling and Servicing Agreement.
(b) Within two (2) business days of receipt of a notice of a foreclosure
delay, the Loss Mitigation Advisor shall provide the Servicer with a
recommendation regarding the delay, provided, however, that if additional
information is required on which to base a recommendation, the Loss Mitigation
Advisor shall notify the Servicer of the additional information needed within
the allotted time, and the Servicer shall promptly provide such information and
the Loss Mitigation Advisor shall then submit to the Servicer its
recommendation. The Loss Mitigation Advisor may recommend that additional
procedures be undertaken to further analyze the property, the borrower, or
issues related to the default or foreclosure. Such additional procedures may
include asset searches, property valuations, legal analysis or other procedures
that are warranted by the circumstances of the property, borrower or
foreclosure. The Loss Mitigation Advisor may recommend such other actions as are
warranted by the circumstances of the property, borrower or foreclosure.
(c) Within two (2) business days of receipt of a notice of a proposed
Short Payoff, the Loss Mitigation Advisor shall provide the Servicer with a
recommendation regarding the proposed Short Payoff, provided, however, that if
additional information is required on which to base a recommendation, the Loss
Mitigation Advisor shall notify the Servicer of the additional information
needed within two business days, and the Servicer shall promptly provide such
information and the Loss Mitigation Advisor shall then submit to the Servicer
its recommendation. The Loss Mitigation Advisor's recommendation may take the
form of concurring with the proposed Short Payoff, recommending against such
Short Payoff, with a justification provided, or proposing a counteroffer.
(d) Within two (2) business days of receipt of a notice of an REO sale at
an amount that is more than 15% below the recent market valuation of that
property, the Loss Mitigation Advisor shall provide the Servicer with its
recommendation. The Loss Mitigation Advisor's recommendation may take the form
of concurring with the proposed below-market sale, recommending against such
below-market sale, or proposing a counteroffer.
Section 2.03. Termination.
(a) With respect to all Mortgage Loans included in a trust fund, the
Servicer's obligations under Section 2.01 and Section 2.02 shall terminate at
such time as the Certificate Principal Balances of the related Class B
Certificates have been reduced to zero.
(b) The Loss Mitigation Advisor's responsibilities under this Agreement
shall terminate upon the termination of the fee agreement between the Purchaser
or its successor and the Loss Mitigation Advisor. The Loss Mitigation Advisor
shall promptly notify the Servicer of the date of termination of such fee
agreement, but in no event later than 5:00 P.M., EST, on the effective date
thereof.
(c) Neither the Servicer nor any of its directors, officers, employees or
agents shall be under any liability for any 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
Servicer or any such Person against 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 Servicer and the Loss Mitigation Advisor and any director,
officer, employee or agent thereof 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. Neither the Loss Mitigation Advisor, its directors,
officers, employees or agents shall be under any liability for any actions taken
by the Servicer based upon the recommendation pursuant to this Agreement,
provided they are made in good faith.
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3.01. Amendment.
This Agreement may be amended from time to time by the Servicer and the
Loss Mitigation Advisor by written agreement signed by the Servicer and the Loss
Mitigation Advisor.
Section 3.02. Counterparts.
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 3.03. Governing Law.
This Agreement shall be 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.
Section 3.04. Notices.
All demands, notices and direction hereunder shall be in writing or by
telecopier and shall be deemed effective upon receipt to:
(a) in the case of the Servicer,
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Secondary Marketing with a copy to the General Counsel
or such other address as may hereafter be furnished in writing by the
Servicer,
(b) in the case of the Loss Mitigation Advisor,
_______________________
(c) in the case of the Purchaser:
_______________________
Section 3.05. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever, including regulatory, 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.
Section 3.06. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders.
(b) The Servicer shall notify the Loss Mitigation Advisor of the
assignment of its duties to any successor servicer within thirty (30) days prior
to such assignment, and shall provide the name, address, telephone number and
telecopier number for the successor to the Loss Mitigation Advisor.
Section 3.07. Article and Section Headings.
The article and section headings herein are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
Section 3.08. Confidentiality.
The Servicer acknowledges the confidentiality of this Agreement and will
not release or republish its contents without the consent of the Loss Mitigation
Advisor except to the extent required by law, regulation or court order.
The Loss Mitigation Advisor agrees that all information supplied by or on
behalf of the Servicer under this Agreement, is the property of the Servicer.
The Loss Mitigation Advisor shall keep in strictest confidence all information
relating to this Agreement, including, without limitation, individual account
information and other information supplied by or on behalf of the Servicer
pursuant to Section 2.01, and that information which may be acquired in
connection with or as a result of this Agreement. During the term of this
Agreement and at any time thereafter, without the prior written consent of the
Servicer, the Loss Mitigation Advisor shall not publish, communicate, divulge,
disclose or use any of such information. Upon termination or expiration of this
Agreement, the Loss Mitigation Advisor shall deliver all records, data,
information, and other documents and all copies thereof supplied by or on behalf
of the Servicer pursuant to Section 2.01 to the Servicer and such shall remain
the property of the Servicer.
Section 3.09. Independent Contractor.
In all matters relating to this Agreement, the Loss Mitigation Advisor
shall be acting as an independent contractor. Neither the Loss Mitigation
Advisor nor any employees of the Loss Mitigation Advisor are employees or agents
of the Servicer under the meaning or application of any Federal or State
Unemployment or Insurance Laws or Workmen's Compensation Laws, or otherwise. The
Loss Mitigation Advisor shall assume all liabilities or obligations imposed by
any one or more of such laws with respect to the employees of the Loss
Mitigation Advisor in the performance of this Agreement. The Loss Mitigation
Advisor shall not have any authority to assume or create any obligation, express
or implied, on behalf of the Servicer, and the Loss Mitigation Advisor shall not
have the authority to represent itself as an agent, employee, or in any other
capacity of the Servicer.
IN WITNESS WHEREOF, the Servicer and the Loss Mitigation Advisor have
caused their names to be signed hereto by their respective officers thereunto
duly authorized, all as of the day and year first above written.
Bank of America, N.A.
By:_________________________________
Name:_______________________________
Title:______________________________
Loss Mitigation Advisor
__________________________
By:_________________________________
Name:_______________________________
Title:______________________________
PURCHASER'S ACKNOWLEDGEMENT AND AGREEMENT
Purchaser executes this agreement for the purpose of acknowledging the limited
obligations of the Servicer in respect of the Loss Mitigation Advisor's
recommendation, as described in Section 2.02(a) hereof and confirming to the
Servicer that (i) it shall be solely responsible for the payment of the fees of
the Loss Mitigation Advisor pursuant to the terms of an agreement between
Purchaser and Loss Mitigation Advisor dated _____________, 20__ and (ii)
Purchaser upon transfer of its interest in any of the Class B Certificates or
any part thereof will require its successor to consent to this Special Servicing
Agreement and to pay any of the fees due to the Loss Mitigation Advisor pursuant
to the agreement referenced in clause (i) above.
Purchaser
By:________________________________
Name:______________________________
Title:_______________________________
EXHIBIT L
LIST OF RECORDATION STATES
Florida
Maryland
EXHIBIT M
FORM OF INITIAL CERTIFICATION OF THE TRUSTEE
December 29, 0000
Xxxx xx Xxxxxxx, N.A.
Secondary Marketing
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
NC1-022-05-10
Attn: Xxxxxx Xxxxxxx
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: BoAMS 2005-12
Assured Guaranty Corp.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Risk Management Department and General Counsel
Re: Banc of America Mortgage Securities, Inc. Mortgage Pass-Through
Certificates, Series 2005-12, issued pursuant to a Pooling and
Servicing Agreement, dated December 29, 2005, among Banc of America
Mortgage Securities, Inc., as Depositor, Bank of America, N.A., as
Servicer, and Xxxxx Fargo Bank, N.A., as Trustee
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as Trustee, hereby certifies that, except as specified in any list
of exceptions attached hereto, either (i) it has received the original Mortgage
Note relating to each of the Mortgage Loans listed on the Mortgage Loan Schedule
or (ii) if such original Mortgage Note has been lost, a copy of such original
Mortgage Note, together with a lost note affidavit.
The Trustee 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
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.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
XXXXX FARGO BANK, N.A.,
as Trustee
By:_____________________________________
Name:___________________________________
Title:__________________________________
EXHIBIT N
FORM OF FINAL CERTIFICATION OF THE TRUSTEE
[__________ __, ____]
Bank of America, N.A.
Secondary Marketing
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
NC1-022-05-10
Attn: Xxxxxx Xxxxxxx
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: BoAMS 2005-12
Assured Guaranty Corp.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Risk Management Department and General Counsel
Re: Banc of America Mortgage Securities, Inc. Mortgage Pass-Through
Certificates, Series 2005-12, issued pursuant to a Pooling and
Servicing Agreement, dated December 29, 2005, among Banc of America
Mortgage Securities, Inc., as Depositor, Bank of America, N.A., as
Servicer, and Xxxxx Fargo Bank, N.A., as Trustee
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as Trustee, 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 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
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.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
XXXXX FARGO BANK, N.A.,
as Trustee
By:_____________________________________
Name:___________________________________
Title:__________________________________
EXHIBIT O
Form of Xxxxxxxx-Xxxxx Certification
Banc of America Mortgage Securities, Inc.
Mortgage Pass-Through Certificates,
Series 2005-12
I, [________], a [_____________] of Bank of America, N.A. (the
"Servicer"), certify that:
1. I have reviewed the annual report on Form 10-K, and all Monthly Form 8-K's
containing Distribution Date Statements filed in respect of periods
included in the year covered by this annual report, of the Banc of America
Mortgage Trust 2005-12 Trust (the "Trust");
2. Based on my knowledge, the information in these reports, taken as a whole,
does 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 as of
the last day of the period covered by this annual report;
3. Based on my knowledge, the distribution or servicing information required
to be provided to the Trustee by the Servicer under the Pooling and
Servicing Agreement, dated December 29, 2005 (the "Agreement"), among Banc
of America Mortgage Securities, Inc., as depositor, Bank of America, N.A.,
as servicer, and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"), for
inclusion in these reports is included in these reports;
4. I am responsible for reviewing the activities performed by the Servicer
under the Agreement and based upon my knowledge and the annual compliance
review required under the Agreement, and except as disclosed in the
reports, the Servicer has fulfilled its obligations under the Agreement;
5. The reports disclose all significant deficiencies relating to the
Servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant after conducting a
review in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or similar procedure as set forth in the Agreement that
is included in these reports; and
6. In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated party: Xxxxx
Fargo Bank, N.A.
By:_____________________________________
Name:
Title:
EXHIBIT P
Form of Certification to be Provided by the Trustee to the Servicer
Banc of America Mortgage Securities, Inc.
Mortgage Pass-Through Certificates,
Series 2005-12
The Trustee hereby certifies to the 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 calendar year
[___] and the Monthly Form 8-K's containing the Distribution Date Statements
filed in respect of periods included in the year covered by such annual report;
2. Based on my knowledge, the distribution information in the Distribution
Date Statements contained in the Monthly Form 8-K's included in the year covered
by the annual report on Form 10-K for the calendar year [___], taken as a whole,
does 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 as of the
last day of the period covered by that annual report; and
3. Based on my knowledge, the distribution or servicing information
required to be provided to the Trustee by the Servicer under the Pooling and
Servicing Agreement, dated December 29, 2005, among Banc of America Mortgage
Securities, Inc., as depositor, Bank of America, N.A., as servicer, and Xxxxx
Fargo Bank, N.A., as trustee, for inclusion in these reports is included in
these reports.
XXXXX FARGO BANK, N.A.
as Trustee
By:___________________________________
Name:
Title
EXHIBIT Q
Form of Policy
Assured Guaranty Corp.
ASSURED 1325 Avenue of the Americas
[LOGO] Xxx Xxxx, XX 00000 212-974-0100
GUARANTY xxx.xxxxxxxxxxxxxxx.xxx
Financial Guaranty Insurance Policy
Insured Obligations: Banc of America Policy No.: D-2005-140
Mortgage Securities, Inc., Mortgage
Pass-Through Certificates,
Series 2005-12, $20,445,000
Class A-1 Certificates Effective Date: December 29, 2005
Assured Guaranty Corp., a Maryland-domiciled insurance company
("Assured Guaranty"), in consideration of the payment of the premium and subject
to the terms of this Policy (which includes each endorsement hereto), hereby
unconditionally and irrevocably agrees to pay to the Trustee for the benefit of
the Holders of the Insured Obligations, that portion of the Insured Amounts
which shall become Due for Payment but shall be unpaid by reason of Nonpayment.
Assured Guaranty will make payment of any amount required to be paid
under this Policy following receipt of notice as described in Endorsement No. 1
hereto. Such payments of principal and interest shall be made only upon
presentation of an instrument of assignment in form and substance satisfactory
to Assured Guaranty, transferring to Assured Guaranty all rights under such
Insured Obligations to receive the principal of and interest on the Insured
Obligations. Payment by Assured Guaranty to the Trustee for the benefit of the
Holders shall discharge the obligations of Assured Guaranty under this Policy to
the extent of such payment. Assured Guaranty shall be subrogated to the rights
of each Holder to receive payments in respect of the Insured Obligations to the
extent of any payment by Assured Guaranty under this Policy.
In the event that the Trustee for the Insured Obligations has notice
that any payment of principal of or interest on an Insured Obligation which has
become Due for Payment and which has been made to a Holder by or on behalf of
the Trustee has been deemed a preferential transfer and has been recovered from
such Holder pursuant to the United States Bankruptcy Code in accordance with a
final, nonappealable order of a court of competent jurisdiction, such Holder
will be entitled to payment from Assured Guaranty to the extent of such recovery
if sufficient funds are not otherwise available (in accordance with Endorsement
No. 1 to this Policy).
This Policy is non-cancelable by Assured Guaranty for any reason.
The premium on this Policy is not refundable for any reason. This Policy does
not insure against loss of any prepayment or other acceleration payment which at
any time may become due in respect of any Insured Obligation, other than at the
sole option of Assured Guaranty, nor against any risk other than Nonpayment,
including the failure of the Trustee to remit amounts received to the Holders of
Insured Obligations and any shortfalls attributable to taxes or withholding
taxes, including interest and penalties in respect of such liability.
To the fullest extent permitted by applicable law, Assured Guaranty
hereby waives, in each case for the benefit of the Holders only, all rights and
defenses of any kind that may be available to Assured Guaranty with respect to
the obligation to pay the amounts due hereunder in full.
This Policy (which includes each endorsement hereto) sets forth in
full the undertaking of Assured Guaranty with respect to the subject matter
hereof, and may not be modified, altered or affected by any other agreement or
instrument, including without limitation any modification thereto or amendment
thereof.
This Policy shall be governed by, and shall be construed in
accordance with, the laws of the State of New York.
THIS POLICY IS NOT COVERED BY THE PROPERTY/CASUALTY INSURANCE
SECURITY FUND SPECIFIED IN ARTICLE 76 OF THE NEW YORK INSURANCE LAW.
Capitalized terms used and not defined herein shall have the
meanings ascribed thereto in the endorsement attached hereto.
IN WITNESS WHEREOF, Assured Guaranty has caused this Policy to be
affixed with its corporate seal, signed by its duly authorized officer and to
become effective and binding upon Assured Guaranty by virtue of such signature.
ASSURED GUARANTY CORP.
By: ___________________________________
Name:
Title:
Assured Guaranty Corp.
ASSURED 1325 Avenue of the Americas
[LOGO] Xxx Xxxx, XX 00000 212-974-0100
GUARANTY xxx.xxxxxxxxxxxxxxx.xxx
Endorsement No. 1 to Financial Guaranty Insurance Policy
Attached to and forming a part of Effective Date: December 29, 2005
Financial Guaranty Insurance Policy
No. D-2005-140
Issued To: Xxxxx Fargo Bank, N.A., for the
Holders of the Banc of America Mortgage
Securities, Inc., Mortgage Pass-Through
Certificates, Series 2005-12, $20,445,000
Class A-1 Certificates
This endorsement forms a part of the Policy referenced above. To
the extent the provisions of this endorsement conflict with the provisions of
the above-referenced Policy, the provisions of this endorsement shall govern.
SECTION 1. Definitions
For purposes of the Policy, the following terms shall have the
following meanings:
"Beneficiary" shall mean the Trustee, on behalf of and for the
benefit of, the Holders of the Insured Obligations.
"Business Day" shall mean any day other than (i) a Saturday or
Sunday, (ii) any other day on which banking institutions in the City of New
York, the State of Maryland, or the city in which the Corporate Trust Office of
the Trustee is located are authorized or required by law, executive order or
governmental decree to be closed, or (iii) a day on which the Insurer is closed.
"Deficiency Amount" shall mean, with respect to the Insured
Certificates, the sum of (i) for each Distribution Date, the sum of the Class
A-1 Interest Loss Amount and the Class A-1 Principal Loss Amount for such
Distribution Date and (ii) on the Final Scheduled Distribution Date or, with the
consent of the Insurer, upon the earlier termination of the Trust pursuant to
the terms of the Pooling Agreement, the principal balance of the Insured
Certificates alter giving effect to any distributions on such Distribution Date;
provided, however, that "Deficiency Amount" shall not include any additional
amounts owing by the Trust as a result of the failure by the Trustee to pay an
amount when due and payable, including, without limitation, any such additional
amounts as may be attributable to penalties or default interest rates, amounts
in respect of indemnification, or any other additional amounts payable by reason
of such a default. "Deficiency Amount" does not include any Prepayment Interest
Shortfalls or Relief Act Reductions allocated to the Class A-1 Certificates or
any shortfall attributable to the liability of the Trust, any REMIC or the
Trustee for withholding or other taxes, including interest and penalties in
respect of such liability allocated to the Class A-1 Certificates.
"Due for Payment" shall mean (i) with respect to the Class A-1
Interest Loss Amount and the Class A-1 Principal Loss Amount for any
Distribution Date, the Distribution Date on which such amount is due and payable
pursuant to the terms of the Pooling Agreement (without giving effect to any
acceleration thereof), (ii) with respect to the amount in clause (ii) of the
definition of "Deficiency Amount," the date on which such amount is due and
payable as described in such clause (ii), and (iii) with respect to a Preference
Amount, the Business Day on which the documentation required by the Insurer has
been Received by the Insurer.
"Final Scheduled Distribution Date" shall mean the Distribution Date
occurring in January 2036.
"Fiscal Agent" shall have the meaning assigned thereto in Section 4.
"Holder" shall mean each Certificateholder who, on the applicable
Distribution Date, is entitled under the terms of the Insured Obligations to
payment thereunder.
"Insolvency Proceeding" shall mean the commencement after the date
hereof of any bankruptcy, insolvency, readjustment of debt, reorganization,
marshalling of assets and liabilities or similar proceedings by or against any
Person, or the commencement after the date hereof of any proceedings by or
against any Person for the winding up or the liquidation of its affairs, or the
consent after the date hereof to the appointment of a trustee, conservator,
administrator, receiver or liquidator in any bankruptcy, insolvency,
readjustment of debt, reorganization, marshalling of assets and liabilities or
similar proceedings relating to any Person.
"Insured Amount" shall mean, with respect to any Distribution Date
and the Insured Obligations, the Deficiency Amount for such Distribution Date
and any Preference Amount.
"Insured Obligation" shall mean the Banc of America Mortgage
Securities, Inc., Mortgage Pass-Through Certificates, Series 2005-12,
$20,445,000 Class A-1 Certificates.
"Insured Payment" shall mean, with respect to any Distribution Date,
the aggregate amount paid by the Insurer to the Trustee in respect of (i) the
Deficiency Amount for such Distribution Date and (ii) Preference Amounts for any
given Business Day.
"Insurer" shall mean Assured Guaranty Corp., a Maryland-domiciled
insurance company, and any successor thereto, as issuer of the Policy.
"Issuer" shall mean Banc of America Mortgage Trust 2005-12.
"Nonpayment" shall mean, with respect to any Distribution Date, an
Insured Amount is Due for Payment but the funds, if any, remitted to the Trustee
pursuant to the Pooling Agreement are insufficient for payment in full of such
Insured Amount.
"Notice of Claim" shall mean a notice of claim in the form of
Exhibit A hereto.
"Order" shall mean a final nonappealable order of a court or other
body exercising jurisdiction in an Insolvency Proceeding by or against the
Trust, to the effect that a Holder or the Beneficiary is required to return or
repay all or any portion of a Preference Amount.
"Person" shall mean any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
"Policy" shall mean Financial Guaranty Insurance Policy No.
D-2005-140, together with each and every endorsement thereto.
"Pooling Agreement" shall mean the Pooling and Servicing Agreement,
dated December 29, 2005, among Banc of America Mortgage Securities, Inc., as
depositor, Banc of America, N.A., as servicer and Xxxxx Fargo Bank, N.A., as
trustee, without regard to any amendment or supplement thereto unless such
amendment or supplement has been approved in writing by the Insurer.
"Preference Amount" shall mean any payment of principal or interest
previously distributed by or on behalf of the Trust to a Holder of Insured
Obligations, which would have been covered under the Policy as a Deficiency
Amount if there had been a shortfall in funds available to make such payment on
the required Distribution Date for such payment, which has been deemed a
preferential transfer and has been recovered from such Holder pursuant to the
United States Bankruptcy Code in accordance with an Order.
"Receipt" and "Received" shall mean actual delivery to the Insurer
prior to 12:00 p.m., New York City time, on a Business Day; provided, however,
that delivery either on a day that is not a Business Day, or after 12:00 p.m.,
New York City time, on a Business Day, shall be deemed to be "Received" on the
next succeeding Business Day. For purposes of this definition, "actual delivery"
to the Insurer shall mean (i) the delivery of the original Notice of Claim,
notice or other applicable documentation to the Insurer at its address set forth
in Section 7, or (ii) facsimile transmission of the original Notice of Claim,
notice or other applicable documentation to the Insurer at its facsimile number
set forth in Section 7. If presentation is made by facsimile transmission, the
Beneficiary (i) promptly shall confirm transmission by telephone to the Insurer
at its telephone number set forth in Section 7, and (ii) as soon as is
reasonably practicable, shall deliver the original Notice of Claim, notice or
other applicable documentation to the Insurer at its address set forth in
Section 7. If any Notice of Claim, notice or other documentation actually
delivered (or attempted to be delivered) under the Policy by the Beneficiary is
not in proper form or is not properly completed, executed or delivered, or
otherwise is insufficient for the purpose of making a claim hereunder, "Receipt"
by the Insurer shall be deemed not to have occurred, and the Insurer promptly
shall so advise the Beneficiary. In such case, the Beneficiary may submit an
amended Notice of Claim, notice or other documentation, as the case may be, to
the Insurer.
"Reimbursement Amount" shall mean the amount of all Insured Payments
and other payments made by the Insurer pursuant to the Policy which have not
been previously repaid (without any interest on such amount).
"Relief Act Reductions" shall mean interest shortfalls resulting
from the application of the Servicemembers Relief Act, as amended, or any
similar state law.
"Term of the Policy" shall mean the period from and including the
Effective Date to and including the date that is one year and one day following
the earlier to occur of (i) the date on which all amounts required to be paid on
the Class A-1 Certificates have been paid in full and (ii) the Final Scheduled
Distribution Date; provided, however, that in the event that any amount with
respect to any Insured Payment paid to the Beneficiary pursuant to the Pooling
Agreement during the Term of the Policy becomes a Preference Amount, the
Insurer's obligations with respect thereto shall remain in effect or shall be
reinstated, as applicable, until payment in full by the Insurer pursuant to the
terms hereof.
"Trustee" shall mean Xxxxx Fargo Bank, N.A. and any successor in
interest, and, if a successor trustee is appointed pursuant to the Pooling
Agreement, such successor.
Capitalized terms used herein and not otherwise defined shall have
the meaning assigned to them in the Pooling Agreement as of the date of
execution of the Policy, without giving effect to any subsequent amendment to or
modification of the Pooling Agreement unless such amendment or modification has
been approved in writing by the Insurer.
SECTION 2. Claims
The Beneficiary may make a claim under this Policy for the amount of
any Deficiency Amount by executing and delivering, or causing to be executed and
delivered, to the Insurer a Notice of Claim, with appropriate insertions. Such
Notice of Claim, when so completed and delivered, shall constitute proof of a
claim hereunder when Received by the Insurer.
In the event that any amount shall be received by the Beneficiary in
respect of a Deficiency Amount forming the basis of a claim specified in a
Notice of Claim submitted hereunder, which amount had not been received when the
Notice of Claim was prepared but which is received by the Beneficiary prior to
the receipt of payment from the Insurer as contemplated by this Policy (any such
amount, a "Recovery"), the Beneficiary immediately shall so notify the Insurer
(which notice shall include the amount of any such Recovery). The fact that a
Recovery has been received by the Beneficiary shall be deemed to be incorporated
in the applicable Notice of Claim as of the date such Notice of Claim originally
was prepared, without necessity of any action on the part of any Person, and the
Insurer shall pay the amount of the claim specified in the Notice of Claim as
herein provided, net of the Recovery.
The Insurer will pay each Insured Amount that constitutes a
Deficiency Amount to the Beneficiary no later than noon, New York City time, on
the later of (i) the Distribution Date on which such Deficiency Amount becomes
Due for Payment or (ii) the third Business Day following Receipt by the Insurer
on a Business Day in New York, New York of a Notice of Claim as specified in the
second preceding paragraph.
The Insurer will pay each Insured Amount that constitutes a
Preference Amount when due to be paid pursuant to an applicable Order, but in
any event no earlier than the fourth Business Day following Receipt by the
Insurer from the Beneficiary of (i) a certified copy of such Order, (ii) a
certificate by or on behalf of the Beneficiary that such Order has been entered
and is not subject to any stay, (iii) an assignment, in form and substance
satisfactory to the Insurer, duly executed and delivered by the Beneficiary,
irrevocably assigning to the Insurer all rights and claims of the Beneficiary
against the estate of the Trust or otherwise, which rights and claims relate to
or arise under or with respect to the subject Preference Amount, and (iv) a
Notice of Claim appropriately completed and executed by the Beneficiary. Such
payment shall be disbursed to the receiver, conservator, administrator,
debtor-in-possession or trustee in bankruptcy named in the Order, and not to the
Beneficiary directly, unless the Beneficiary has previously paid the Preference
Amount over to such court or receiver, conservator, administrator,
debtor-in-possession, or trustee in bankruptcy, in which case the Insurer will
pay the Beneficiary subject to the delivery of (a) the items referred to in
clauses (i), (ii), (iii) and (iv) above to the Insurer, and (b) evidence
satisfactory to the Insurer that payment has been made to such court or
receiver, conservator, administrator, debtor-in-possession or trustee in
bankruptcy named in the Order.
Notwithstanding the foregoing paragraph, in no event shall the
Insurer be obligated to make any payment in respect of a Preference Amount prior
to the date such Preference Amount is Due for Payment. In the event that the
payment of any amount in respect of any Insured Amount is accelerated or must
otherwise be paid by the Trust in advance of the scheduled payment date
therefore, nothing in this Policy shall be deemed to require the Insurer to make
any payment hereunder in respect of any such Insured Amount prior to the date
such Insured Amount otherwise would have been Due for Payment without giving
effect to such acceleration, unless the Insurer in its sole discretion elects to
make any prior payment, in whole or in part, with respect to any such Insured
Amount.
No claim may be made hereunder except by the Beneficiary.
SECTION 3. Payments
Payments due hereunder in respect of Insured Amounts shall be
disbursed to the Beneficiary by wire transfer of immediately available funds to
an account of the Beneficiary specified in the applicable Notice of Claim.
The Insurer's obligations hereunder in respect of Insured Amounts
shall be discharged to the extent that funds are transferred to the Beneficiary
as provided in the Notice of Claim, whether or not such funds are properly
applied by the Beneficiary.
SECTION 4. Fiscal Agent
At any time during the Term of the Policy, the Insurer may appoint a
fiscal agent (the "Fiscal Agent") for purposes of this Policy by written notice
to the Beneficiary, specifying the name and notice address of such Fiscal Agent.
From and after the date of receipt of such notice by the Beneficiary, copies of
all notices and documents required to be delivered to the Insurer pursuant to
this Policy shall be simultaneously delivered to the Fiscal Agent and to the
Insurer. All payments required to be made by the Insurer under this Policy may
be made directly by the Insurer or by the Fiscal Agent on behalf of the Insurer.
The Fiscal Agent is the agent of the Insurer only, and the Fiscal Agent shall in
no event be liable to the Beneficiary for any acts of the Fiscal Agent or any
failure of the Insurer to deposit, or cause to be deposited, sufficient funds to
make payments due under this Policy.
SECTION 5. Subrogation
The Insurer shall be subrogated to the rights of each Holder to
receive distributions in respect of the Insured Obligations to the extent of any
payment by the Insurer hereunder. Any payment made by or on behalf of the Trust
to, and any amounts received under the Pooling Agreement for the benefit of, the
Holders in respect of any Insured Payment forming the basis of a claim hereunder
(which claim shall have been paid by the Insurer) shall be received and held in
trust for the benefit of the Insurer and shall be paid over to the Insurer in
accordance with the Pooling Agreement. The Beneficiary and each Holder shall
cooperate in all reasonable respects, and at the expense of the Insurer, with
any request by the Insurer for action to preserve or enforce the Insurer's
rights and remedies in respect of the Trust under the Insured Obligations, any
related security arrangements or otherwise, including without limitation any
request to (i) institute or participate in any suit, action or other proceeding,
(ii) enforce any judgment obtained and collect from the Trust or the Beneficiary
any amounts adjudged due or (iii) transfer to the Insurer, via absolute legal
assignment, the Beneficiary's or such Holder's rights in respect of any
Reimbursement Amount which may form the basis of a claim hereunder.
SECTION 6. Assignment
This Policy may not be assigned by the Beneficiary without the prior
written consent of the Insurer.
SECTION 7. Notices
All notices, presentations, transmissions, deliveries and
communications made by the Beneficiary to the Insurer with respect to this
Policy shall specifically refer to the number of this Policy, shall be in
writing (except as otherwise specifically provided herein) and shall be mailed
by registered mail or personally delivered or telecopied to the recipient as
follows:
if to the Insurer:
Assured Guaranty Corp.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Risk Management Department
(BoAMS 2005-12, Policy No. D-2005-140)
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to the General Counsel at the above address and telecopier number.
In each case in which a demand, notice or other communication
to Assured Guaranty refers to an Event of Default, a claim on
this Policy or any event with respect to which failure on the
part of Assured Guaranty to respond shall be deemed to
constitute consent or acceptance, then such demand, notice or
other communication shall be marked to indicate "URGENT
MATERIAL ENCLOSED".
if to the Beneficiary:
Xxxxx Fargo Bank, N.A., as Trustee
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: BoAMS Series 2005-12
The Insurer or the Beneficiary may designate an additional or
different address, or telephone or telecopier number, by prior written notice.
Each notice, presentation, delivery and communication to the Insurer shall be
effective only upon Receipt by the Insurer.
SECTION 8. Premiums
The Beneficiary shall pay or cause to be paid to the Insurer in
accordance with the Pooling Agreement the premium payable to the Insurer in
respect of this Policy.
SECTION 9. Termination
This Policy and the obligations of the Insurer hereunder shall
terminate upon the expiration of the Term of the Policy.
SECTION 10. No Waiver
No waiver of any rights or powers of the Insurer or the Beneficiary,
or any consent by either of them, shall be valid unless in writing and signed by
an authorized officer or agent of the Insurer or Beneficiary, as applicable. The
waiver of any right by the Insurer or the Beneficiary, or the failure promptly
to exercise any such right, shall not be construed as a waiver of any other
right to exercise the same at any time thereafter.
SECTION 11. Submission to Jurisdiction
The Insurer hereby irrevocably submits to the jurisdiction of the
United States District Court for the Southern District of New York and any court
in the State of New York located in the City and County of New York, and any
appellate court which hears appeals from any such court, in any action, suit or
proceeding brought against it in connection with its obligations under this
Policy, or for recognition or enforcement of any judgment with respect thereto,
and the Insurer hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard or determined in such New
York State court or, to the extent permitted by law, in such United States
federal court. The Insurer agrees that a final judgment in any such action, suit
or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment, or in any other manner provided by applicable law. To the
extent permitted by applicable law, the Insurer hereby waives and agrees not to
assert by way of motion, as a defense or otherwise in any such suit, action or
proceeding, any claim (i) that it is not personally subject to the jurisdiction
of such courts, (ii) that the suit, action or proceeding is brought in an
inconvenient forum, (iii) that the venue of the suit, action or proceeding is
improper or (iv) that the subject matter thereof may not be litigated in or by
such courts.
IN WITNESS WHEREOF, Assured Guaranty has caused this Endorsement to
the Policy to be signed by its duty authorized officer to become effective and
binding upon Assured Guaranty by virtue of such signature.
ASSURED GUARANTY CORP.
By: __________________________________
Name:
Title:
EXHIBIT A
NOTICE OF NONPAYMENT AND DEMAND FOR PAYMENT OF INSURED AMOUNTS
[Insert Date]
Assured Guaranty Corp.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Risk Management Department and General Counsel
Reference is made to Financial Guaranty Insurance Policy
No. D-2005-140 (the "Policy") issued by Assured Guaranty Corp. (the
"Insurer"). Capitalized terms used herein and not otherwise defined shall
have the meaning assigned to them in the Policy and the Pooling and Servicing
Agreement, dated December 29, 2005, among Banc of America Mortgage
Securities, Inc., as depositor, Banc of America, N.A., as Servicer and Xxxxx
Fargo Bank, N.A., as trustee (the "Pooling Agreement"), as the case may be,
unless the context otherwise requires.
The undersigned, a duly authorized officer of the Trustee, hereby
certifies to the Insurer that:
(i) The Trustee is the Trustee under the Pooling Agreement for
the Holders.
(ii) The relevant Distribution Date is [insert applicable
payment date].
(iii) The amount due under clause (i) of the definition of
Deficiency Amount for such Distribution Date is $____________.
(iv) The amount due under clause (ii) of the definition of
Deficiency Amount for such Distribution Date is $_____________.
(v) The sum of the amounts listed in paragraphs (iii) and (iv)
above is $_____________________ (the "Deficiency Amount").
(vi) The amount of previously distributed payments in respect
of an Insured Obligation that is recoverable and sought to be
recovered as a voidable preference by a trustee in bankruptcy
pursuant to an Insolvency Proceeding in accordance with a final
nonappealable order of a court having competent jurisdiction is
$_________________ (the "Preference Amount").
(vii) The total Insured Amount due is $_____________, which
amount equals the sum of the Deficiency Amount and the Preference
Amount.
(viii) The Trustee is making a claim under the Policy for the
Insured Amount.
(ix) The Trustee agrees that, following payment by the Insurer
made with respect to the Insured Amount, which is the subject of
this Notice of Claim, it (a) will cause such amounts to be applied
directly to the payment of the applicable Insured Amount; (b) will
insure that such funds are not applied for any other purpose; and
(c) will cause an accurate record of such payment to be maintained
with respect to the appropriate Insured Amount(s), the corresponding
claim on the Policy, and the proceeds of such claim.
Payment should be made by wire transfer to the following account:
[------------------]
ABA No.: [ 1
Account No: [ 1
Reference: [ 1
Upon payment of the applicable Deficiency Amount(s), the Insurer
shall be subrogated to the rights of the Beneficiary with respect to such
payment, to the extent set forth on the face page to the Policy and Section 5 of
Endorsement No. 1 thereto.
This Notice of Claim may be revoked at any time by written notice of
such revocation by the Trustee to the Insurer.
ANY PERSON WHO KNOWINGLY AND WITH INTENT TO DEFRAUD ANY INSURANCE
COMPANY OR OTHER PERSON FILES AN APPLICATION FOR INSURANCE OR STATEMENT OF CLAIM
CONTAINING ANY MATERIALLY FALSE INFORMATION, OR CONCEALS FOR THE PURPOSE OF
MISLEADING, INFORMATION CONCERNING ANY FACT MATERIAL THERETO, COMMITS A
FRAUDULENT INSURANCE ACT, WHICH IS A CRIME AND SHALL ALSO BE SUBJECT TO A CIVIL
PENALTY NOT TO EXCEED FIVE THOUSAND DOLLARS AND THE STATED VALUE OF THE CLAIM
FOR EACH SUCH VIOLATION.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Notice of Claim as of the ___ day of ________ of 20__.
[Insert Name of Trustee],
as Trustee
By:____________________________________
Name:
Title:
EXHIBIT R
PRINCIPAL BALANCE SCHEDULE
Payment Date PAC Group
------------ ---------
Intitial Balance 136,879,000.00
January 25, 2006 136,463,886.13
February 25, 2006 135,986,250.18
March 25, 2006 135,446,339.68
April 25, 2006 134,844,342.30
May 25, 2006 134,180,485.83
June 25, 2006 133,455,038.15
July 25, 2006 132,668,307.10
August 25, 2006 131,820,640.28
September 25, 2006 130,912,424.96
October 25, 2006 129,944,087.72
November 25, 2006 128,916,094.26
December 25, 2006 127,828,949.06
January 25, 2007 126,683,194.95
February 25, 2007 125,479,412.80
March 25, 2007 124,218,220.99
April 25, 2007 122,900,274.94
May 25, 2007 121,526,266.60
June 25, 2007 120,096,923.86
July 25, 2007 118,613,009.93
August 25, 2007 117,075,322.69
September 25, 2007 115,484,694.01
October 25, 2007 113,841,989.00
November 25, 2007 112,148,105.27
December 25, 2007 110,403,972.11
January 25, 2008 108,610,549.68
February 25, 2008 106,768,828.09
March 25, 2008 104,879,826.54
April 25, 2008 102,944,592.37
May 25, 2008 100,965,064.60
June 25, 2008 98,998,798.32
July 25, 2008 97,045,883.11
August 25, 2008 95,106,232.36
September 25, 2008 93,179,760.04
October 25, 2008 91,266,380.66
November 25, 2008 89,366,009.33
December 25, 2008 87,478,561.66
January 25, 2009 85,624,718.87
February 25, 2009 83,783,632.67
March 25, 2009 81,955,220.35
April 25, 2009 80,139,399.73
May 25, 2009 78,336,089.15
June 25, 2009 76,545,207.52
July 25, 2009 74,766,674.25
August 25, 2009 73,000,409.28
September 25, 2009 71,246,333.09
October 25, 2009 69,504,366.66
November 25, 2009 67,774,431.49
December 25, 2009 66,056,449.61
January 25, 2010 64,350,343.54
February 25, 2010 62,656,036.32
March 25, 2010 60,973,451.48
April 25, 2010 59,302,513.05
May 25, 2010 57,643,145.58
June 25, 2010 55,995,274.08
July 25, 2010 54,358,824.07
August 25, 2010 52,733,721.57
September 25, 2010 51,119,893.04
October 25, 2010 49,517,265.47
November 25, 2010 47,925,766.30
December 25, 2010 46,345,323.44
January 25, 2011 44,864,602.28
February 25, 2011 43,394,625.19
March 25, 2011 41,935,321.83
April 25, 2011 40,486,622.29
May 25, 2011 39,048,457.13
June 25, 2011 37,620,757.37
July 25, 2011 36,203,454.47
August 25, 2011 34,796,480.36
September 25, 2011 33,399,767.40
October 25, 2011 32,013,248.42
November 25, 2011 30,636,856.66
December 25, 2011 29,270,525.83
January 25, 2012 27,943,204.79
February 25, 2012 26,625,668.32
March 25, 2012 25,317,851.80
April 25, 2012 24,019,691.02
May 25, 2012 22,731,122.22
June 25, 2012 21,452,082.03
July 25, 2012 20,182,507.52
August 25, 2012 18,937,853.05
September 25, 2012 17,722,944.77
October 25, 2012 16,537,150.93
November 25, 2012 15,379,852.65
December 25, 2012 14,250,443.67
January 25, 2013 13,282,645.42
February 25, 2013 12,338,725.60
March 25, 2013 11,418,157.58
April 25, 2013 10,520,425.78
May 25, 2013 9,645,025.47
June 25, 2013 8,791,462.52
July 25, 2013 7,959,253.20
August 25, 2013 7,147,923.96
September 25, 2013 6,357,011.24
October 25, 2013 5,586,061.24
November 25, 2013 4,834,629.75
December 25, 2013 4,102,281.92
January 25, 2014 3,504,166.96
February 25, 2014 2,920,871.48
March 25, 2014 2,352,061.26
April 25, 2014 1,797,409.34
May 25, 2014 1,256,595.83
June 25, 2014 729,307.79
July 25, 2014 215,239.05
August 25, 2014 0.00
