EXHIBIT 4
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XXXX XX XXXXXXX FUNDING CORPORATION,
as Depositor,
GREENPOINT MORTGAGE FUNDING, INC.,
as Servicer,
and
XXXXX FARGO BANK, N.A.,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated April 28, 2005
-----------------------
Mortgage Pass-Through Certificates
Series 2005-C
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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT......................................................
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms................................................
Section 1.02 Calculations.................................................
Section 1.03 Rights of the NIMS Insurer...................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.................................
Section 2.02 Acceptance by the Trustee of the Mortgage Loans..............
Section 2.03 Representations, Warranties and Covenants of the Servicer....
Section 2.04 Representations and Warranties of the Depositor as to the
Mortgage Loans..............................................
Section 2.05 Designation of Interests in the REMICs.......................
Section 2.06 REMIC Certificate Maturity Date..............................
Section 2.07 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 the
Servicer....................................................
Section 3.03 Fidelity Bond; Errors and Omissions Insurance................
Section 3.04 Access to Certain Documentation..............................
Section 3.05 Maintenance of Primary Mortgage Insurance Policy; Claims.....
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.........................
Section 3.09 Collection of Mortgage Loan Payments; Servicer Custodial
Account, Distribution Account and Reserve Account...........
Section 3.10 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.............................................
Section 3.11 Access of Trustee and NIMS Insurer to Certain
Documentation and Information Regarding the Mortgage
Loans.......................................................
Section 3.12 Permitted Withdrawals from the Servicer Custodial
Accounts and the Distribution Account.......................
Section 3.13 Maintenance of Hazard Insurance and Other Insurance..........
Section 3.14 Enforcement of Due-On-Sale Clauses; Assumption Agreements....
Section 3.15 Realization Upon Defaulted Mortgage Loans; REO Property......
Section 3.16 Trustee to Cooperate; Release of Mortgage Files..............
Section 3.17 Documents, Records and Funds in Possession of the
Servicer to be Held for the Trustee.........................
Section 3.18 Servicing Compensation.......................................
Section 3.19 Annual Statement as to Compliance............................
Section 3.20 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.............................
Section 3.21 Advances.....................................................
Section 3.22 Modifications, Waivers, Amendments and Consents..............
Section 3.23 Reports to the Securities and Exchange Commission............
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 REMIC Distributions..........................................
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates.............................................
Section 6.02 Registration of Transfer and Exchange of Certificates........
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 6.04 Persons Deemed Owners........................................
ARTICLE VII
THE DEPOSITOR AND THE SERVICER
Section 7.01 Respective Liabilities of the Depositor and the Servicer.....
Section 7.02 Merger or Consolidation of the Depositor or the Servicer.....
Section 7.03 Limitation on Liability of the Depositor, the Servicer
and Others..................................................
Section 7.04 Depositor and Servicer Not to Resign.........................
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default............................................
Section 8.02 Remedies of Trustee..........................................
Section 8.03 Directions by Certificateholders and Duties of Trustee
During Event of Default.....................................
Section 8.04 Action upon Certain Failures of the Servicer and upon
Event of Default............................................
Section 8.05 Trustee to Act; Appointment of Successor.....................
Section 8.06 Notification to Certificateholders...........................
ARTICLE IX
THE TRUSTEE
Section 9.01 Duties of Trustee............................................
Section 9.02 Certain Matters Affecting the Trustee........................
Section 9.03 Trustee not Liable for Certificates or Mortgage Loans........
Section 9.04 Trustee May Own Certificates.................................
Section 9.05 Eligibility Requirements for Trustee.........................
Section 9.06 Resignation and Removal of Trustee...........................
Section 9.07 Successor Trustee............................................
Section 9.08 Merger or Consolidation of Trustee...........................
Section 9.09 Appointment of Co-Trustee or Separate Trustee................
Section 9.10 Authenticating Agents........................................
Section 9.11 Trustee's Fees and Expenses..................................
Section 9.12 Appointment of Custodian.....................................
Section 9.13 Paying Agents................................................
Section 9.14 Limitation of Liability......................................
Section 9.15 Trustee May Enforce Claims Without Possession of
Certificates................................................
Section 9.16 Suits for Enforcement........................................
Section 9.17 Waiver of Bond Requirement...................................
Section 9.18 Waiver of Inventory, Accounting and Appraisal Requirement....
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase 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; Counterparts.......................
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 B-M-1 Form of Face of Class M-1 Certificate
Exhibit B-M-2 Form of Face of Class M-2 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-1 Form of Face of Class CE Certificates...........
Exhibit B-2 Form of Face of Class P Certificates............
Exhibit B-3 Form of Face of Class R Certificates............
Exhibit C Form of Reverse of all Certificates.............
Exhibit D-1 Loan Subgroup A Mortgage Loan Schedule..........
Exhibit D-2 Loan Subgroup B Mortgage Loan Schedule..........
Exhibit E Form of Request for Release.....................
Exhibit F Form of Certification of Establishment of
Account.........................................
Exhibit G-1 Form of Transferor's Certificate................
Exhibit G-2A Form I of Transferee's Certificate..............
Exhibit G-2B Form II of Transferee's Certificate.............
Exhibit H Form of Transferee Representation Letter
for ERISA Restricted Certificates...............
Exhibit I Form of Affidavit Regarding Transfer of
Residual Certificate............................
Exhibit J List of Recordation States......................
Exhibit K Form of Initial Certification ..................
Exhibit L Form of Final Certification.....................
Exhibit M Form of Xxxxxxxx-Xxxxx Certification............
Exhibit N Form of Trustee's Xxxxxxxx-Xxxxx Reliance
Certification...................................
Exhibit O Form of Servicer's Xxxxxxxx-Xxxxx Reliance
Certification...................................
Exhibit P Form of Yield Maintenance Agreements............
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated April 28, 2005, is
hereby executed by and among BANC OF AMERICA FUNDING CORPORATION, as depositor
(together with its permitted successors and assigns, the "Depositor"),
GREENPOINT MORTGAGE FUNDING, INC., as servicer (together with its permitted
successors and assigns, "GreenPoint" or 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
The Trust Estate for federal income tax purposes will be treated as
two real estate mortgage investment conduits (the "Upper-Tier REMIC" and the
"Lower-Tier REMIC," respectively, and each a "REMIC"). The Offered Certificates
(other than the Class A-3 Certificates) and each Component (exclusive of the
right of such Certificates or Components to receive Cap Carryover Amounts) and
the Class CE Certificates shall constitute "regular interests" in the Upper-Tier
REMIC. The Certificates (other than the Class R and Class P Certificates) are
the "Regular Certificates." The Uncertificated Lower-Tier Interests shall
constitute the "regular interests" in the Lower-Tier REMIC. The "Class LR
Interest" shall be the "residual interest" in the Lower-Tier REMIC. The "Class
UR Interest" shall be the "residual interest" in the Upper-Tier REMIC. The
portion of the Trust Estate consisting of the Reserve Account, the Yield
Maintenance Agreements, the Class P Certificates, the rights of the Offered
Certificates to receive Cap Carryover Amounts and the obligation of the Class CE
Certificates to pay Cap Carryover Amounts shall not be assets of either REMIC
created hereunder, but rather shall be assets of the Grantor Trust. The assets
of the Grantor Trust, the Certificates and the Uncertificated Lower-Tier
Interests will represent the entire beneficial ownership interest in the Trust.
The "latest possible maturity date" for federal income tax purposes of all
interests created hereby will be the REMIC Certificate Maturity Date.
The following table sets forth characteristics of the Certificates
and Components, together with the minimum denominations and integral multiples
in excess thereof in which the Classes of Certificates shall be issuable:
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Integral
Pass- Minimum Multiples
Initial Class Through Denomination/ in Excess
Classes Certificate Balance Rate Percentage Interest of Minimum
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Class A-1 $295,302,000.00 (1) $1,000 $1
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Class A-2 $111,958,000.00 (2) $1,000 $1
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Class A-3 (3) (3) $1,000 $1
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Class M-1 $14,365,000.00 (4) $25,000 $1
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Class M-2 $10,898,000.00 (4) $25,000 $1
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Class B-1 $7,926,000.00 (4) $25,000 $1
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Class B-2 $2,477,000.00 (4) $25,000 $1
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Class B-3 $3,220,000.00 (4) $25,000 $1
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Class CE (5) (5) N/A N/A
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Class P N/A N/A N/A N/A
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Class R N/A N/A N/A N/A
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Integral
Pass- Multiples In
Initial Component Through Minimum Excess Of
Components Balance Rate Denomination Minimum
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Class A-3A $32,812,000.00 (6) N/A N/A
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Class A-3B $12,440,000.00 (7) N/A N/A
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(1) For each Distribution Date occurring prior to and including the Auction
Date, interest will accrue on the Class A-1 Certificates at a per annum
rate equal to the lesser of (i) the sum of One-Month LIBOR and 0.24% and
(ii) the Subgroup A Cap. On each Distribution Date following the Auction
Date, interest will accrue on the Class A-1 Certificates at a per annum
rate equal to the lesser of (i) the sum of One-Month LIBOR and 0.48% and
(ii) the Subgroup A Cap.
(2) For each Distribution Date occurring prior to and including the Auction
Date, interest will accrue on the Class A-2 Certificates at a per annum
rate equal to the lesser of (i) the sum of One-Month LIBOR and 0.25% and
(ii) the Subgroup B Cap. On each Distribution Date following the Auction
Date, interest will accrue on the Class A-2 Certificates at a per annum
rate equal to the lesser of (i) the sum of One-Month LIBOR and 0.50% and
(ii) the Subgroup B Cap.
(3) The Class A-3 Certificates will be deemed for purposes of distributions of
principal and interest to consist of two Components as described in the
table: the Class A-3A Component and the Class A-3B Component (each, a
"Component"). The Components are not severable.
(4) For each Distribution Date occurring prior to and including the Auction
Date, interest will accrue on these Certificates at a per annum rate equal
to the lesser of (i) the sum of One-Month LIBOR and 0.45%, 0.65%, 1.20%,
1.90% and 1.90% with respect to the Class M-1, Class M-2, Class B-1, Class
B-2 and Class B-3 Certificates, respectively, and (ii) the Pool Cap. On
each Distribution Date following the Auction Date, interest will accrue on
these Certificates at a per annum rate equal to the lesser of (i) the sum
of One-Month LIBOR and 0.675%, 0.975%, 1.80%, 2.85% and 2.85% with respect
to the Class M-1, Class M-2, Class B-1, Class B-2 and Class B-3
Certificates, respectively, and (ii) the Pool Cap.
(5) Solely for REMIC purposes, the Class CE Certificates will (i) have an
initial Original Class Certificate Balance equal to the Initial
Overcollateralization Amount and (ii) will bear interest on their Notional
Amount at their Pass-Through Rate.
(6) For each Distribution Date occurring prior to and including the Auction
Date, interest will accrue on the Class A-3A Component at a per annum rate
equal to the lesser of (i) the sum of One-Month LIBOR and 0.30% and (ii)
the Subgroup A Cap. On each Distribution Date following the Auction Date,
interest will accrue on the Class A-3A Component at a per annum rate equal
to the lesser of (i) the sum of One-Month LIBOR and 0.60% and (ii) the
Subgroup A Cap.
(7) For each Distribution Date occurring prior to and including the Auction
Date, interest will accrue on the Class A-3B Component at a per annum rate
equal to the lesser of (i) the sum of One-Month LIBOR and 0.30% and (ii)
the Subgroup B Cap. On each Distribution Date following the Auction Date,
interest will accrue on the Class A-3B Component at a per annum rate equal
to the lesser of (i) the sum of One-Month LIBOR and 0.60% and (ii) the
Subgroup B Cap.
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.
60+ Day Delinquent Loan: For each Distribution Date, each Mortgage
Loan (including each Mortgage Loan in foreclosure and each Mortgage Loan for
which the Mortgagor has filed for bankruptcy after the Closing Date) with
respect to which any portion of a Monthly Payment is, as of the Due Date in the
prior calendar month, two months or more past due and each Mortgage Loan
relating to an REO Property.
Accrued Certificate Interest: For any Distribution Date and each
Class of interest-bearing Certificates (other than the Class A-3 Certificates),
one month's interest accrued during the related Interest Accrual Period at the
applicable Pass-Through Rate on the related Class Certificate Balance less such
Class' Interest Percentage of Relief Act Shortfalls for such Distribution Date.
For any Distribution Date and the Class A-3 Certificates, the sum of the Accrued
Component Interest for each Component.
Accrued Component Interest: For any Distribution Date and each
Component, one month's interest accrued during the related Interest Accrual
Period at the applicable Pass-Through Rate on the related Component Balance less
such Component's Interest Percentage of Relief Act Shortfalls for 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 Accounts 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 assumption fees, late payment charges and all
other ancillary income and fees (other than Prepayment Premiums) with respect to
the Mortgage Loans.
Applied Realized Loss Amount: With respect to each Distribution
Date, the excess, if any, of the aggregate of (a) the Class Certificate Balances
of the Certificates (after taking into account the distribution of the Principal
Distribution Amount on such Distribution Date and any increase in any Class
Certificate Balance as a result of Recoveries) over (b) the aggregate Stated
Principal Balance of the Mortgage Loans as of the Due Date in the month of such
Distribution Date.
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 or, in certain cases, an
automated valuation model or tax assessed value and (b) the sales price for such
property, except that, in the case of Mortgage Loans the proceeds of which were
used to refinance an existing mortgage loan, the Appraised Value of the related
Mortgaged Property is the appraised value thereof determined in an appraisal
obtained at the time of refinancing or, in certain cases, an automated valuation
model or tax assessed value, or (ii) the appraised value determined in an
appraisal made at the request of a Mortgagor subsequent to origination in order
to eliminate the Mortgagor's obligation to keep a Primary Mortgage Insurance
Policy in force.
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.
Auction Date: As defined in Section 10.01 hereof.
Auction Winner: As defined in Section 10.01 hereof.
Available Funds: As to any Distribution Date, the sum of the
Interest Remittance Amount and the Principal Remittance Amount for such
Distribution Date.
Authenticating Agents: As defined in Section 9.10.
BAFC: Banc of America Funding Corporation or its successor in
interest.
Book-Entry Certificate: All Classes of Certificates other than the
Physical Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii)
a day on which banking institutions in the State of North Carolina, the State of
New York, the State of California, the State of Minnesota, the State of Maryland
or any state in which the Corporate Trust Office of the Trustee is located are
required or authorized by law or executive order to be closed.
Cap: Any of the Subgroup A Cap, the Subgroup B Cap or the Pool Cap.
Cap Carryover Amount: If on any Distribution Date the Accrued
Certificate Interest for any Class of Certificates or the Accrued Component
Interest for any Component is based upon clause (ii) of the definition of the
applicable Cap, the excess of (i) the amount of interest such Class or Component
would have been entitled to receive on such Distribution Date based on the
related Pass-Through Rate (without regard to the applicable Cap), over (ii) the
amount of interest such Class or Component received on such Distribution Date
based on the applicable Cap, together with the unpaid portion of any such excess
from prior Distribution Dates (and interest accrued thereon at the then
applicable Pass-Through Rate on such Class or Component).
Certificate: Any of the Banc of America Funding Corporation Mortgage
Pass-Through Certificates, Series 2005-C that are issued pursuant to this
Agreement.
Certificate Balance: With respect to any Certificate (other than the
Class CE, Class-P and Class R Certificates) 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. The Class CE, Class P and Class R Certificates have no
Certificate Balance.
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 or 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 an affiliate of the Depositor or the Servicer unless one of its
Responsible Officers has actual knowledge thereof.
Certification: As defined in Section 3.23.
Class: As to the Certificates, the Class A-1, Class X-0, Xxxxx X-0,
Class M-1, Class M-2, Class B-1, Class B-2, Class B-3, Class CE, Class P and
Class R Certificates, as the case may be.
Class A Certificates: The Class A-1, Class A-2 and Class A-3
Certificates.
Class A-3 Realized Loss Amortization Amount: As to the Components
and as of any Distribution Date, the lesser of (x) the Unpaid Realized Loss
Amount for the Components as of such Distribution Date and (y) the excess of (i)
the Monthly Excess Cashflow Amount over (ii) the sum of the amounts described in
Section 5.02(c)(i) through (iii) hereof, in each case for such Distribution
Date.
Class A-3A Applied Realized Loss Amount: With respect to any
Distribution Date on and after the Class Certificate Balance of the Class M-1
Certificates has been reduced to zero, and after the Applied Realized Loss
Amount has been allocated pursuant to the first paragraph of Section 5.03, the
excess, if any, of (a) the sum of the aggregate Class Certificate Balance of the
Class A-1 Certificates and the Component Balance of the Class A-3A Component
(after taking into account the distribution of the Principal Distribution Amount
on such Distribution Date and any increase in the Class Certificate Balance of
the Class A-1 Certificates or the Component Balance of the Class A-3A Component
as a result of Recoveries) over (b) the aggregate Stated Principal Balance of
the Subgroup A Mortgage Loans as of the Due Date in the month of such
Distribution Date.
Class A-3B Applied Realized Loss Amount: With respect to any
Distribution Date on and after the Class Certificate Balance of the Class M-1
Certificates has been reduced to zero, and after the Applied Realized Loss
Amount has been allocated pursuant to the first paragraph of Section 5.03, the
excess, if any, of (a) the sum of the aggregate Class Certificate Balance of the
Class A-2 Certificates and the Component Balance of the Class A-3B Component
(after taking into account the distribution of the Principal Distribution Amount
on such Distribution Date and any increase in the Class Certificate Balance of
the Class A-2 Certificates or the Component Balance of the Class A-3B Component
as a result of Recoveries) over (b) the aggregate Stated Principal Balance of
the Subgroup B Mortgage Loans as of the Due Date in the month of such
Distribution Date.
Class B Certificates: The Class B-1, Class B-2 and Class B-3
Certificates.
Class B-1 Principal Distribution Amount: As of any Distribution Date
on or after the Stepdown Date and as long as a Trigger Event is not in effect,
the excess of (x) the sum of (i) the aggregate Class Certificate Balance of the
Class A Certificates (after taking into account the payment of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Class
Certificate Balance of the Class M-1 Certificates (after taking into account the
payment of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Class Certificate Balance of the Class M-2 Certificates (after
taking into account the payment of the Class M-2 Principal Distribution Amount
on such Distribution Date), and (iv) the Class Certificate Balance of the Class
B-1 Certificates immediately prior to such Distribution Date over (y) the lesser
of (A) the product of (i) 96.10% and (ii) the aggregate Stated Principal Balance
of the Mortgage Loans as of the Due Date in the month of such Distribution Date
and (B) the amount by which the aggregate Stated Principal Balance of the
Mortgage Loans as of the Due Date in the month of such Distribution Date exceeds
the product of (i) 0.50% and (ii) the Cut-off Date Pool Principal Balance.
Class B-1 Realized Loss Amortization Amount: As to the Class B-1
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class B-1 Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum
of the amounts described in Section 5.02(c)(i) through (xi) hereof, in each case
for such Distribution Date.
Class B-2 Principal Distribution Amount: As of any Distribution Date
on or after the Stepdown Date and as long as a Trigger Event is not in effect,
the excess of (x) the sum of (i) the aggregate Class Certificate Balance of the
Class A Certificates (after taking into account the payment of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Class
Certificate Balance of the Class M-1 Certificates (after taking into account the
payment of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Class Certificate Balance of the Class M-2 Certificates (after
taking into account the payment of the Class M-2 Principal Distribution Amount
on such Distribution Date), (iv) the Class Certificate Balance of the Class B-1
Certificates (after taking into account the payment of the Class B-1 Principal
Distribution Amount on such Distribution Date), and (v) the Class Certificate
Balance of the Class B-2 Certificates immediately prior to such Distribution
Date over (y) the lesser of (A) the product of (i) 97.10% and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans as of the Due Date in the month
of such Distribution Date and (B) the amount by which the aggregate Stated
Principal Balance of the Mortgage Loans as of the Due Date in the month of such
Distribution Date exceeds the product of (i) 0.50% and (ii) the Cut-off Date
Pool Principal Balance.
Class B-2 Realized Loss Amortization Amount: As to the Class B-2
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class B-2 Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum
of the amounts described in Section 5.02(c)(i) through (xiv) hereof, in each
case for such Distribution Date.
Class B-3 Principal Distribution Amount: As of any Distribution Date
on or after the Stepdown Date and as long as a Trigger Event is not in effect,
the excess of (x) the sum of (i) the aggregate Class Certificate Balance of the
Class A Certificates (after taking into account the payment of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Class
Certificate Balance of the Class M-1 Certificates (after taking into account the
payment of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Class Certificate Balance of the Class M-2 Certificates (after
taking into account the payment of the Class M-2 Principal Distribution Amount
on such Distribution Date), (iv) the Class Certificate Balance of the Class B-1
Certificates (after taking into account the payment of the Class B-1 Principal
Distribution Amount on such Distribution Date), (v) the Class Certificate
Balance of the Class B-2 Certificates (after taking into account the payment of
the Class B-2 Principal Distribution Amount on such Distribution Date) and (vi)
the Class Certificate Balance of the Class B-3 Certificates immediately prior to
such Distribution Date over (y) the lesser of (A) the product of (i) 98.40% and
(ii) the aggregate Stated Principal Balance of the Mortgage Loans as of the Due
Date in the month of such Distribution Date and (B) the amount by which the
aggregate Stated Principal Balance of the Mortgage Loans as of the Due Date in
the month of such Distribution Date exceeds the product of (i) 0.50% and (ii)
the Cut-off Date Pool Principal Balance.
Class B-3 Realized Loss Amortization Amount: As to the Class B-3
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class B-3 Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum
of the amounts described in Section 5.02(c)(i) through (xvii) hereof, in each
case for such Distribution Date.
Class CE Distributable Amount: With respect to any Distribution
Date, the sum of (i) the interest accrued on such Class CE Certificate at its
Pass-Through Rate calculated on its Notional Amount less the amount (without
duplication) of Cap Carryover Amounts paid pursuant to Section 5.02(c)(xix),
(ii) any remaining Overcollateralization Release Amounts, (iii) the aggregate of
amounts remaining in the Reserve Account after the distributions in Section
3.09(f)(i)(A).
Class CE Uncertificated Principal Balance: As of any date of
determination, the Initial Overcollateralization Amount minus the sum of (i) any
Realized Losses allocated thereto and (ii) any amounts distributed (or deemed
distributed) to the Class CE Certificates with respect thereto.
Class M-1 Principal Distribution Amount: As of any Distribution Date
on or after the Stepdown Date and as long as a Trigger Event is not in effect,
the excess of (x) the sum of (i) the aggregate Class Certificate Balance of the
Class A Certificates (after taking into account the payment of the Senior
Principal Distribution Amount on such Distribution Date) and (ii) the Class
Certificate Balance of the Class M-1 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 88.50% and (ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the Due Date
in the month of such Distribution Date and (B) the amount by which the aggregate
Stated Principal Balance of the Mortgage Loans as of the Due Date in the month
of such Distribution Date exceeds the product of (i) 0.50% and (ii) the Cut-off
Date Pool Principal Balance.
Class M-1 Realized Loss Amortization Amount: As to the Class M-1
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class M-1 Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum
of the amounts described in Section 5.02(c)(i) through (v) hereof, in each case
for such Distribution Date.
Class M-2 Principal Distribution Amount: As of any Distribution Date
on or after the Stepdown Date and as long as a Trigger Event is not in effect,
the excess of (x) the sum of (i) the aggregate Class Certificate Balance of the
Class A Certificates (after taking into account the payment of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Class
Certificate Balance of the Class M-1 Certificates (after taking into account the
payment of the Class M-1 Principal Distribution Amount on such Distribution
Date) and (iii) the Class Certificate Balance of the Class M-2 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 92.90% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the Due Date in the month of such Distribution Date and (B)
the amount by which the aggregate Stated Principal Balance of the Mortgage Loans
as of the Due Date in the month of such Distribution Date exceeds the product of
(i) 0.50% and (ii) the Cut-off Date Pool Principal Balance.
Class M-2 Realized Loss Amortization Amount: As to the Class M-2
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class M-2 Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum
of the amounts described in Section 5.02(c)(i) through (viii) hereof, in each
case for such Distribution Date.
Class A Certificates: The Class A-1, Class A-2 and Class A-3
Certificates.
Class B Certificates: The Class B-1, Class B-2 and Class B-3
Certificates.
Class Certificate Balance: Class Certificate Balance means, with
respect to any Class of Offered Certificates (other than the Class A-3
Certificates) and any Distribution Date, and subject to Section 5.02(f), the
Initial Class Certificate Balance of such Class (a) reduced by the sum of (i)
all amounts actually distributed in respect of principal of such Class on all
prior Distribution Dates and (ii) Applied Realized Loss Amounts allocated
thereto for previous Distribution Dates pursuant to Section 5.03 and (b)
increased by any Recoveries allocated to such Class for previous Distribution
Dates. The Class Certificate Balance of the Class A-3 Certificates will equal
the sum of the Component Balances of the Components. The Class CE, Class P and
Class R Certificates do not have a Class Certificate Balance.
Class M Certificates: The Class M-1 Certificates and the Class M-2
Certificates.
Class M Certificateholders: Collectively, the Holders of the Class M
Certificates.
Class LR Interest: As defined in the Preliminary Statement.
Class UR Interest: As defined in the Preliminary Statement.
Closing Date: April 28, 2005.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest: As defined in Section 3.18.
Component Balance: With respect to any Component and any
Distribution Date and subject to Section 5.02(f), the Initial Component Balance
of such Component (a) reduced by the sum of (i) all amounts actually distributed
in respect of principal of such Component on all prior Distribution Dates and
(ii) Class A-3A Applied Realized Loss Amounts, Class A-3B Applied Realized Loss
Amount or Applied Realized Loss Amounts allocated thereto, as the case may be,
for previous Distribution Dates pursuant to Section 5.03 and (b) increased by
any Recoveries allocated to such Component for previous Distribution Dates.
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 - BAFC 2005-C, and for
certificate transfer purposes is located at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Services - BAFC 2005-C,
or at such other address as the Trustee may designate from time to time by
notice to the Certificateholders, the Depositor, the NIMS Insurer and the
Servicer.
Corresponding Classes or Components: With respect to the Lower-Tier
REMIC and the Upper-Tier REMIC, the following Classes or Components shall be
Corresponding Classes or Components:
Corresponding
Lower-Tier Interests Corresponding Upper-Tier Classes or Components
-------------------- ----------------------------------------------
LT1A1 Class A-1 Certificates
LT1A2 Class A-2 Certificates
LT1A3A Class A-3A Component
LT1A3B Class X-0X Xxxxxxxxx
XX0X0 Class M-1 Certificates
LT1M2 Class M-2 Certificates
LT1B1 Class B-1 Certificates
LT1B2 Class B-2 Certificates
LT1B3 Class B-3 Certificates
Custodial Agreement: Initially, the Custodial Agreement, dated April
28, 2005, by and among the Depositor, the Servicer, Trustee and the Custodian
and thereafter any custodial agreement entered into pursuant to Section 9.12.
Custodian: Initially, Wachovia Bank, National Association, as
custodian under the Custodial Agreement, 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 the Trustee. None of the Depositor,
the Servicer 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 such 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: April 1, 2005.
Cut-off Date Pool Principal Balance: The aggregate of the Cut-off
Date Principal Balances of the Mortgage Loans which is $495,361,118.59.
Cut-off Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof as of the close of business on the Cut-off Date,
reduced by all installments of principal due on or prior thereto whether or not
paid.
Debt Service Reduction: As to any Mortgage Loan and any
Determination Date, the excess of (i) the Monthly Payment due on the related Due
Date under the terms of such Mortgage Loan over (ii) the amount of the monthly
payment of principal and/or interest required to be paid with respect to such
Due Date by the Mortgagor as established by a court of competent jurisdiction
(pursuant to an order which has become final and nonappealable) as a result of a
proceeding initiated by or against the related Mortgagor under the Bankruptcy
Code, as amended from time to time (11 U.S.C.); provided that no such excess
shall be considered a Debt Service Reduction so long as (a) the Servicer is
pursuing an appeal of the court order giving rise to any such modification and
(b)(1) such Mortgage Loan is not in default with respect to payment due
thereunder in accordance with the terms of such Mortgage Loan as in effect on
the Cut-off Date or (2) Monthly Payments are being advanced by the Servicer in
accordance with the terms of such Mortgage Loan as in effect on the Cut-off
Date.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that became
the subject of a Debt Service Reduction.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
cured, repurchased or substituted for pursuant to Section 2.02.
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 Funding Corporation, a Delaware
corporation, or its successor in interest, as depositor of the Trust Estate.
Depository: The Depository Trust Company, the nominee of which is
Cede & Co., as the registered Holder of the Book-Entry Certificates or any
successor thereto appointed in accordance with this Agreement. The Depository
shall at all times be a "clearing corporation" as defined in Section 8-102(3) of
the Uniform Commercial Code of the State of New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date, the 15th day of the
month of the related Distribution Date or, if such 15th day is not a Business
Day, the Business Day immediately preceding such day.
Distribution Account: The Eligible Account created and maintained by
the Trustee pursuant to Section 3.09(b) in the name of the Trustee for the
benefit of the Certificateholders and designated "Xxxxx Fargo Bank, N.A., as
Trustee, in trust for registered holders of Banc of America Funding Corporation
Mortgage Pass-Through Certificates, Series 2005-C." The Distribution Account
shall be deemed to consist of three sub-accounts: one for each Loan Subgroup
(designated as Sub-Account 1 and Sub-Account 2) and one sub-account referred to
herein as the Upper-Tier Certificate Sub-Account. Funds in the Distribution
Account shall be held in trust for the Holders of the Certificates for the uses
and purposes set forth in this Agreement.
Distribution Date: The 20th day of each month beginning in May 2005
(or, if such day is not a Business Day, the next Business Day).
Due Date: As to any Distribution Date and each Mortgage Loan, the
first day in the calendar month of such Distribution Date.
Eligible Account: Any of (i) an account or accounts maintained with
a 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, the NIMS Insurer 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 (including the Trustee), 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.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificates: Any of the Class CE, Class P and
Class R Certificates.
Escrow Account: As defined in Section 3.10.
Escrow Payments: The amounts constituting taxes, assessments,
Primary Mortgage Insurance Policy premiums, fire and hazard insurance premiums
and other payments as may be required to be escrowed by the Mortgagor with the
mortgagee pursuant to the terms of any Mortgage Note or Mortgage.
Event 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 3.12(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.
Extra Principal Distribution Amount: As of any Distribution Date,
the lesser of (x) the Monthly Excess Interest Amount for such Distribution Date
and (y) the Overcollateralization Deficiency for such Distribution Date.
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.
FNMA: Xxxxxx Xxx, or any successor thereto.
Form 10-K: As defined in Section 3.23(a).
Grantor Trust: That portion of the Trust exclusive of the REMICs
consisting of (a) the Prepayment Premiums and the right of the Class P
Certificateholders to receive such Prepayment Premiums, (a) the right of the
Offered Certificates to receive Cap Carryover Amounts, (b) each Yield
Maintenance Agreement, the Reserve Account and the beneficial interest of the
Class CE Certificates with respect thereto and (c) the obligation of the Class
CE Certificates to pay Cap Carryover Amounts.
GreenPoint: GreenPoint Mortgage Funding, Inc., a New York
corporation, or its successor in interest, in its capacity as Servicer, or any
successor servicer for such Mortgage Loans appointed as herein provided.
Gross Margin: As to each Mortgage Loan, the fixed percentage set
forth in the related Mortgage Note and indicated in the Mortgage Loan Schedule
as the "Gross Margin," which percentage is added to the Index on each Rate
Adjustment Date to determine (subject to rounding, the Periodic Cap and the Rate
Ceiling) the Mortgage Interest Rate on such Mortgage Loan until the next Rate
Adjustment Date.
Holder: A Certificateholder.
Indenture: An indenture relating to the issuance of net interest
margin notes secured by the Class CE Certificates and the Class P Certificates,
which may or may not be guaranteed by the NIMS Insurer.
Independent: When used with respect to any specified Person means
such a Person who (i) is in fact independent of the Depositor, the Trustee and
the Servicer, (ii) does not have any direct financial interest or any material
indirect financial interest in the Depositor, the Trustee or the Servicer or in
an affiliate of any of them, and (iii) is not connected with the Depositor, the
Trustee or the Servicer as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
Index: As to any Mortgage Loan and Rate Adjustment Date, a rate per
annum that is defined to be the arithmetic mean of the interbank offered rates
for six month U.S. dollar-denominated deposits in the London market, as
published in The Wall Street Journal and most recently available either (i) as
of the first Business Day in the month preceding the month of the applicable
Rate Adjustment Date or (ii) up to 45 days before the applicable Rate Adjustment
Date.
Initial Class Certificate Balance: As to each Class of Certificates,
the Class Certificate Balance set forth in the Preliminary Statement.
Initial Component Balance: As to each Component, the Component
Balance set forth in the Preliminary Statement.
Initial Overcollateralization Amount: $3,963,118.59.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Estate, any related insurance policy, including all riders and
endorsements thereto in effect, including any replacement policy or policies for
any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such Insurance
Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any
other insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: As to each Distribution Date and each Class
of Offered Certificates, the period from and including the Distribution Date in
the prior calendar month (or in the case of the first Distribution Date, from
the Closing Date) through and including the day prior to the current
Distribution Date. Interest on each Class of Offered Certificates will be
calculated on the basis of the actual number of days in the related Interest
Accrual Period and a 360-day year.
Interest Carry Forward Amount: For any Class of Offered Certificates
(other than the Class A-3 Certificates) and the Components and any Distribution
Date, the sum of (a) the excess, if any, of the Accrued Certificate Interest or
Accrued Component Interest, as the case may be, and any Interest Carry Forward
Amount for the prior Distribution Date, over the amount in respect of interest
actually distributed on such Class or Component on such prior Distribution Date
and (b) interest on such excess at the applicable Pass-Through Rate for the
related Interest Accrual Period.
Interest Percentage: With respect to any Class of Offered
Certificates (other than the Class A-3 Certificates) or any Component and any
Distribution Date, the ratio (expressed as a decimal carried to six places) of
the Accrued Certificate Interest for such Class or Accrued Component Interest
for such Component to the sum of the Accrued Certificate Interest for all
Classes and Accrued Component Interest for all Components, in each case with
respect to such Distribution Date, without regard to Relief Act Shortfalls.
Interest Remittance Amount: As of any Distribution Date, the sum of
the Subgroup A Interest Remittance Amount and the Subgroup B Interest Remittance
Amount for such Distribution Date.
LIBOR Business Day: Any day on which banks in the London, England
and The City of New York are open and conducting transactions in foreign
currency and exchange.
LIBOR Determination Date: With respect to the Offered Certificates
and each Interest Accrual Period (after the first Interest Accrual Period), the
second LIBOR Business Day prior to the day on which such Interest Accrual Period
commences.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) that was liquidated in the
calendar month preceding the month of such Distribution Date and as to which the
Servicer has certified (in accordance with this Agreement) that it has received
all proceeds it expects to receive in connection with the liquidation of such
Mortgage Loan including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or otherwise or
amounts received in connection with any condemnation or partial release of a
Mortgaged Property and any other proceeds received in connection with an REO
Property, less the sum of related unreimbursed Servicing Fees and Advances.
Loan Subgroup: Any of Loan Subgroup A or Loan Subgroup B.
Loan Subgroup A: The Subgroup A Mortgage Loans.
Loan Subgroup B: The Subgroup B Mortgage Loans.
Loan-to-Value Ratio: With respect to any Mortgage Loan and any date
of determination, the fraction, expressed as a percentage, the numerator of
which is the outstanding principal balance of the related Mortgage Loan at the
date of determination and the denominator of which is the Appraised Value of the
related Mortgaged Property.
Lower-Tier Distribution Amount: As defined in Section 5.09(a).
Lower-Tier Rate: With respect to Regular Interest LT1AA, Regular
Interest LT1A1, Regular Interest LT1A2, Regular Xxxxxxxx XX0X0X, Regular
Interest LT1A3B, Regular Interest LT1M1, Regular Interest LT1M2, Regular
Interest LT1B1, Regular Interest LT1B2, Regular Interest LT1B3, Regular Interest
LT1ZZ, Regular Interest LT1SUB, Regular Interest LT2SUB and Regular Interest
LT1XX, the Net WAC of the Mortgage Loans. With respect to Regular Interest
LT1GRP, the Subgroup A Cap. With respect Regular Interest LT2GRP, the Subgroup B
Cap.
Lower-Tier REMIC: As defined in the Preliminary Statement, the
segregated asset pool, the assets of which consist of the Mortgage Loans, such
amounts as shall from time to time be held in the Distribution Account (other
than amounts held in respect of the Upper-Tier Certificate Sub-Account), the
insurance policies, if any, relating to a Mortgage Loan and the Mortgaged
Property which secured a Mortgage Loan and which has been acquired by
foreclosure or deed in lieu of foreclosure.
LT Interest Loss Allocation Amount: With respect to any Distribution
Date, an amount equal to (a) the product of (i) 50% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Due Date in the month of such
Distribution Date and (ii) the Lower-Tier Rate for Regular Interest LT1AA minus
the Marker Rate, divided by (b) 12.
LT Marker Allocation Percentage: 50% of any amount payable from or
loss attributable to the Mortgage Loans, which shall be allocated to Regular
Interest LT1AA, Regular Interest LT1A1, Regular Interest LT1A2, Regular Xxxxxxxx
XX0X0X, Regular Interest LT1A3B, Regular Interest LT1M1, Regular Interest LT1M2,
Regular Interest LT1B1, Regular Interest LT1B2, Regular Interest LT1B3 and
Regular Interest LT1ZZ as provided in Section 5.09(b)(i).
LT Overcollateralization Target Amount: 0.50% of the Targeted
Overcollateralization Amount.
LT Overcollateralized Amount: With respect to any date of
determination, (i) 0.50% of the aggregate Uncertificated Principal Balances of
the Uncertificated Lower-Tier Interests minus (ii) the aggregate of the
Uncertificated Principal Balances of Regular Interest LT1A1, Regular Interest
LT1A2, Regular Xxxxxxxx XX0X0X, Regular Interest LT1A3B, Regular Interest LT1M1,
Regular Interest LT1M2, Regular Interest LT1B1, Regular Interest LT1B2 and
Regular Interest LT1B3, in each case as of such date of determination.
LT Principal Loss Allocation Amount: With respect to any
Distribution Date, an amount equal to (a) the product of (i) 50% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Due Date in
the month of such Distribution Date and (ii) 1 minus a fraction, the numerator
of which is two times the aggregate of the Uncertificated Principal Balances of
Regular Interest LT1A1, Regular Interest LT1A2, Regular Xxxxxxxx XX0X0X, Regular
Interest LT1A3B, Regular Interest LT1M1, Regular Interest LT1M2, Regular
Interest LT1B1, Regular Interest LT1B2 and Regular Interest LT1B3 and the
denominator of which is the aggregate of the Uncertificated Principal Balances
of Regular Interest LT1A1, Regular Interest LT1A2, Regular Xxxxxxxx XX0X0X,
Regular Interest LT1A3B, Regular Interest LT1M1, Regular Interest LT1M2, Regular
Interest LT1B1, Regular Interest LT1B2, Regular Interest LT1B3 and Regular
Interest LT1ZZ.
LT Sub WAC Allocation Percentage: 50% of any amount payable or loss
attributable from the Mortgage Loans, which shall be allocated to Regular
Interest LT1SUB, Regular Interest LT1GRP, Regular Interest LT2SUB, Regular
Interest LT2GRP and Regular Interest LT1XX.
Marker Rate: With respect to the Class CE Certificates and any
Distribution Date, a per annum rate equal to two (2) times the weighted average
of the applicable Lower-Tier Rates for Regular Interest LT1A1, Regular Interest
LT1A2, Regular Xxxxxxxx XX0X0X, Regular Interest LT1A3B, Regular Interest LT1M1,
Regular Interest LT1M2, Regular Interest LT1B1, Regular Interest LT1B2, Regular
Interest LT1B3 and Regular Interest LT1ZZ, (i) with the rate on each such
Uncertificated Lower-Tier Interest (other than Regular Interest LT1ZZ) subject
to a cap equal to the Pass-Through Rate of its Corresponding Class or Component
(taking into account in determining any such Pass-Through Rate the imposition of
the applicable Cap as described in footnote 1, 2, 4, 6 or 7 to the table in the
Preliminary Statement relating to the Certificates) for the purposes of this
calculation and (ii) with the rate on Regular Interest LT1ZZ subject to a cap of
zero for the purpose of this calculation; provided, however, that for this
purpose, calculations of the Lower-Tier Rate and the related caps with respect
to each such Uncertificated Regular Interest (other than Regular Interest LT1ZZ)
shall be multiplied by a fraction, the numerator of which is the actual number
of days in the Interest Accrual Period and the denominator of which is 30.
Maximum LT1ZZ Uncertificated Accrued Interest Deferral Amount: With
respect to any Distribution Date, the excess of (a) accrued interest at the
Lower-Tier Rate applicable to Regular Interest LT1ZZ for such Distribution Date
on a balance equal to the Uncertificated Principal Balance of Regular Interest
LT1ZZ minus the LT Overcollateralized Amount, in each case for such Distribution
Date, over (b) Uncertificated Accrued Interest on Regular Interest LT1A1,
Regular Interest LT1A2, Regular Xxxxxxxx XX0X0X, Regular Interest LT1A3B,
Regular Interest LT1M1, Regular Interest LT1M2, Regular Interest LT1B1, Regular
Interest LT1B2 and Regular Interest LT1B3, each subject to a cap equal to the
Pass-Through Rate of the related Corresponding Class for the purpose of this
calculation; provided, however, that for this purpose, calculations of the
Lower-Tier Rate and the related caps with respect to Uncertificated Accrued
Interest on Regular Interest LT1A1, Regular Interest LT1A2, Regular Xxxxxxxx
XX0X0X, Regular Interest LT1A3B, Regular Interest LT1M1, Regular Interest LT1M2,
Regular Interest LT1B1, Regular Interest LT1B2 and Regular Interest LT1B3 shall
be multiplied by a fraction, the numerator of which is the actual number of days
in the Interest Accrual Period and the denominator of which is 30.
MERS: As defined in Section 2.01(b)(iii) hereof.
Minimum Bid Price: As defined in Section 10.01 hereof.
Monthly Excess Cashflow Amount: The sum of the Monthly Excess
Interest Amount, the Overcollateralization Release Amount and (without
duplication) any portion of the Principal Distribution Amount remaining after
principal distributions on the Offered Certificates.
Monthly Excess Interest Amount: With respect to each Distribution
Date, the amount, if any, by which the Interest Remittance Amount for such
Distribution Date exceeds the aggregate amount distributed on such Distribution
Date to the Certificates pursuant to priorities first through ninth under
Section 5.02(a).
Monthly Form 8-K: As defined in Section 3.23(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.
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 and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
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, as adjusted from time to time in accordance with the provisions of the
related Mortgage Note, which rate is (a) prior to the first Rate Adjustment Date
for each such Mortgage Loan, the initial Mortgage Interest Rate for such
Mortgage Loan indicated on the Mortgage Loan Schedule and (b) from and after
such Rate Adjustment Date, the sum of the Index, as of the Rate Adjustment Date
applicable to such Due Date, and the Gross Margin, rounded as set forth in such
Mortgage Note, subject to the Periodic Cap and the Rate Ceiling applicable to
such Mortgage Loan at any time during the life of such Mortgage Loan.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated April 28, 2005, between Bank of America, National Association,
as seller, and the Depositor, as purchaser.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to
time amended by the Servicer to reflect the addition of Substitute Mortgage
Loans and the deletion of Defective Mortgage Loans pursuant to the provisions of
this Agreement) transferred to the Trustee as part of the Trust Estate and from
time to time subject to this Agreement, attached hereto as Exhibit D-1 and
Exhibit D-2 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; (xvi) the first Rate Adjustment
Date; (xvii) the Rate Ceiling; (xviii) the Periodic Cap; (xix) the Gross Margin;
(xx) the Index; (xxi) the closing date of such Mortgage Loan; and (xxii) whether
such Mortgage Loan is subject to a Prepayment Premium. With respect to each Loan
Subgroup 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.
Net WAC: As to any Loan Subgroup and any Distribution Date, the
weighted average of the Net Mortgage Interest Rates of the Mortgage Loans in
such Loan Subgroup (based on Stated Principal Balances of the Mortgage Loans in
such Loan Subgroup on the Due Date in the month preceding the month of such
Distribution Date).
NIMS Insurer: Any insurer that is guaranteeing certain payments
under notes secured by collateral which includes all or a portion of the Class
CE and Class P Certificates.
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 or the Trustee,
as applicable, 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.
NYCEMA: A New York Consolidation, Extension and Modification
Agreement.
Offered Certificates: The Class A Certificates and the Class M-1,
Class M-2, 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 and delivered
to the Trustee.
One-Month LIBOR: With respect to the initial Interest Accrual
Period, 3.06% per annum. With respect to each Interest Accrual Period (other
than the initial Interest Accrual Period), the rate determined by the Trustee on
the related LIBOR Determination Date on the basis of the offered rate for
one-month United States dollar deposits, as such rate appears on the Telerate
Page 3750, as of 11:00 a.m. (London time) on such LIBOR Determination Date. If
no such quotations are available on a LIBOR Determination Date, One-Month LIBOR
for the related Interest Accrual Period will be the higher of (i) One-Month
LIBOR for the previous LIBOR Determination Date (or, in the case of the first
LIBOR Determination Date for which the Trustee is required to determine
One-Month LIBOR, 3.06% per annum) or (ii) a per annum rate 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
United States dollar lending rate that New York City banks selected by the
Trustee are quoting on the relevant LIBOR 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 United States dollar lending rate that the New York City banks
selected by the Trustee are quoting on such LIBOR Determination Date to leading
European banks.
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 two
separate REMICs or compliance with the REMIC Provisions must be an opinion of
Independent counsel.
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, 2.04 or Section 3.15(b).
Overcollateralization Amount: As of any Distribution Date, the
excess, if any, of (x) the aggregate Stated Principal Balance of the Mortgage
Loans as of the Due Date in the month of such Distribution Date over (y) the
aggregate Class Certificate Balance of all Classes of Offered Certificates
(after taking into account all distributions of principal on such Distribution
Date and the increase of any Class Certificate Balance or Component Balance of a
Class of Offered Certificates or a Component, as applicable, as a result of
Recoveries).
Overcollateralization Deficiency: As of any Distribution Date, the
excess, if any, of (x) the Targeted Overcollateralization Amount for such
Distribution Date over (y) the Overcollateralization Amount for such
Distribution Date, calculated for this purpose after taking into account the
reduction on such Distribution Date of the Class Certificate Balances of all
Classes of Offered Certificates resulting from the distribution of the Principal
Distribution Amount (but not the Extra Principal Distribution Amount) on such
Distribution Date, but prior to taking into account any Applied Realized Loss
Amounts, Class A-3A Applied Realized Loss Amounts or Class A-3B Applied Realized
Loss Amounts on such Distribution Date.
Overcollateralization Release Amount: With respect to any
Distribution Date on or after the Stepdown Date on which a Trigger Event is not
in effect, the lesser of (x) the Principal Remittance Amount for such
Distribution Date and (y) the excess, if any, of (i) the Overcollateralization
Amount for such Distribution Date, assuming that 100% of the Principal
Remittance Amount is applied as a principal payment on the Offered Certificates
on such Distribution Date, over (ii) the Targeted Overcollateralization Amount
for such Distribution Date. With respect to any Distribution Date on which a
Trigger Event is in effect, the Overcollateralization Release Amount will be
zero.
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: As to each Class of interest-bearing
Certificates, the per annum rate set forth or described in the Preliminary
Statement.
With respect to the Class CE Certificates and any Distribution Date,
a per annum rate equal to the percentage equivalent of a fraction, the numerator
of which is the sum of the amounts calculated pursuant to clauses (A) through
(K) below, and the denominator of which is the aggregate of the Uncertificated
Principal Balances of Regular Interest LT1AA, Regular Interest LT1A1, Regular
Interest LT1A2, Regular Xxxxxxxx XX0X0X, Regular Interest LT1A3B, Regular
Interest LT1M1, Regular Interest LT1M2, Regular Interest LT1B1, Regular Interest
LT1B2, Regular Interest LT1B3 and Regular Interest LT1ZZ. For purposes of
calculating the Pass-Through Rate for the Class CE Certificates, the numerator
is equal to the sum of the following components:
(A) the Lower-Tier Rate for Regular Interest LT1AA minus the Marker
Rate, applied to an amount equal to the Uncertificated Principal Balance of
Regular Interest LT1AA;
(B) the Lower-Tier Rate for Regular Interest LT1A1 minus the Marker
Rate, applied to an amount equal to the Uncertificated Principal Balance of
Regular Interest LT1A1;
(C) the Lower-Tier Rate for Regular Interest LT1A2 minus the Marker
Rate, applied to an amount equal to the Uncertificated Principal Balance of
Regular Interest LT1A2;
(D) the Lower-Tier Rate for Regular Xxxxxxxx XX0X0X minus the Marker
Rate, applied to an amount equal to the Uncertificated Principal Balance of
Regular Interest LT1A3A;
(E) the Lower-Tier Rate for Regular Interest LT1A3B minus the Marker
Rate, applied to an amount equal to the Uncertificated Principal Balance of
Regular Interest LT1A3B;
(F) the Lower-Tier Rate for Regular Interest LT1M1 minus the Marker
Rate, applied to an amount equal to the Uncertificated Principal Balance of
Regular Interest LT1M1;
(G) the Lower-Tier Rate for Regular Interest LT1M2 minus the Marker
Rate, applied to an amount equal to the Uncertificated Principal Balance of
Regular Interest LT1M2;
(H) the Lower-Tier Rate for Regular Interest LT1B1 minus the Marker
Rate, applied to an amount equal to the Uncertificated Principal Balance of
Regular Interest LT1B1;
(I) the Lower-Tier Rate for Regular Interest LT1B2 minus the Marker
Rate, applied to an amount equal to the Uncertificated Principal Balance of
Regular Interest LT1B2;
(J) the Lower-Tier Rate for Regular Interest LT1B3 minus the Marker
Rate, applied to an amount equal to the Uncertificated Principal Balance of
Regular Interest LT1B3;
(K) the Lower-Tier Rate for Regular Interest LT1ZZ minus the Marker
Rate, applied to an amount equal to the Uncertificated Principal Balance of
Regular Interest LT1ZZ.
Paying Agent: As defined in Section 9.13.
Percentage Interest: As to any Certificate (other than the Class CE,
Class P and Class R Certificates), the percentage obtained by dividing the
initial Certificate Balance of such Certificate by the Initial Class Certificate
Balance of the Class of which such Certificate is a part. With respect to the
Class CE, Class P and Class R Certificates, the portion of the Class evidenced
thereby, expressed as a percentage, as stated on the face of such Certificate;
provided, however, that the sum of all such percentages for each such Class
totals 100%.
Periodic Advance: The payment required to be made by the Servicer
with respect to any Distribution Date pursuant to Section 3.21, 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) serviced by
such Servicer 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 such Servicer has determined would
constitute a Nonrecoverable Advance if advanced.
Periodic Cap: For each Mortgage Loan, the applicable limit on
adjustment of the Mortgage Interest Rate for each Rate Adjustment Date specified
in the applicable Mortgage Note, if any, and designated as such in the Mortgage
Loan Schedule.
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 "P-1" by Moody's and "A-1" by S&P;
(iii) federal funds, certificates of deposit, demand deposits, time
deposits and bankers' acceptances (which shall each have an original
maturity of not more than 90 days and, in the case of bankers'
acceptances, shall in no event have an original maturity of more than 365
days or a remaining maturity of more than 30 days) denominated in United
States dollars of any U.S. depository institution or trust company
incorporated under the laws of the United States or any state thereof,
rated not lower than "P-1" by Moody's and "A-1" by S&P;
(iv) commercial paper (having original maturities of not more than
365 days) of any corporation incorporated under the laws of the United
States or any state thereof which is rated not lower than "P-1" by Moody's
and "A-1" by S&P;
(v) investments in money market funds (including funds of the
Trustee or its affiliates, or funds for which an affiliate of the Trustee
acts as advisor, as well as funds for which the Trustee and its affiliates
may receive compensation) rated either "Aaa" by Moody's and "AAAm G" by
S&P or otherwise approved in writing by each Rating Agency; and
(vi) other obligations or securities that are acceptable to each
Rating Agency and the NIMS Insurer and, as evidenced by an Opinion of
Counsel obtained by the Trustee and addressed to the Depositor, will not
affect the qualification of the Trust Estate as two separate REMICs;
provided, however, that no instrument shall be a Permitted Investment if it
represents either (a) the right to receive only interest payments with respect
to the underlying debt instrument or (b) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest with respect to such instrument provide a yield to
maturity greater than 120% of the yield to maturity at par of such underlying
obligations.
Permitted Transferee: Any Person other than (i) the United States,
or any State or any political subdivision thereof, or any agency or
instrumentality of any of the foregoing, (ii) a foreign government,
international organization or any agency or instrumentality of either of the
foregoing, (iii) an organization which is exempt from tax imposed by Chapter 1
of the Code (including the tax imposed by Section 511 of the Code on unrelated
business taxable income) (except certain farmers' cooperatives described in Code
Section 521), (iv) rural electric and telephone cooperatives described in Code
Section 1381(a)(2)(C), (v) a Person with respect to whom the income on a
Residual Certificate is allocable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of such Person or
any other U.S. Person, and (vi) any other Person so designated by the Trustee
based on an Opinion of Counsel to the effect that any transfer to such Person
may cause the Trust or any other Holder of a Residual Certificate to incur tax
liability that would not be imposed other than on account of such transfer. The
terms "United States," "State" and "international organization" shall have the
meanings set forth in Code Section 7701 or successor provisions.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Physical Certificates: The Class CE, Class P and Class R
Certificates.
Plan: As defined in Section 6.02(e).
Pool Cap: As of any Distribution Date and the Class M and Class B
Certificates, a per annum rate equal to the lesser of (i) 11.00% and (ii) a per
annum rate (subject to adjustment based on the actual number of days elapsed in
the related Interest Accrual Period) equal to the weighted average of the
Subgroup A Cap and the Subgroup B Cap (each calculated without regard to clause
(i) of the definitions thereof), weighted on the basis of the related Subgroup
Subordinate 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 Rate)
on such Principal Prepayment exceeds the amount of interest paid in connection
with such Principal Prepayment.
Prepayment Premium: Any prepayment premium, penalty or charge
collected by the Servicer from a Mortgagor in connection with any voluntary
Principal Prepayment in Full pursuant to the terms of the related Mortgage Note
as from time to time held as a part of the Trust Fund, the Prepayment Premiums
so held being identified in the Mortgage Loan Schedule.
Primary Mortgage Insurance Policy: Each policy of primary mortgage
guaranty insurance or any replacement policy therefor with respect to any
Mortgage Loan, in each case issued by an insurer acceptable to FNMA or FHLMC.
Principal Distribution Amount: As to any Distribution Date, the sum
of (i) the Principal Remittance Amount minus the Overcollateralization Release
Amount, if any, and (ii) the Extra Principal Distribution Amount, if any.
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.
Principal Prepayment in Full: Any Principal Prepayment of the entire
principal balance of a Mortgage Loan.
Principal Remittance Amount: With respect to any Distribution Date
and Mortgage Loans, to the extent of funds available therefor, the sum (less
amounts available for reimbursement to the Servicer of Advances and expenses
pursuant to this Agreement and amounts reimbursable or payable to the Trustee
pursuant to this Agreement) of: (i) each payment of principal on a Mortgage Loan
due on the Due Date in the month of such Distribution Date and received by the
Servicer on or prior to the related Determination Date, and any Advances with
respect thereto, (ii) all Principal Prepayments received by the Servicer during
the prior calendar month, (iii) Insurance Proceeds, net Liquidation Proceeds and
Recoveries allocable to principal actually collected by the Servicer during the
prior calendar month, (iv) with respect to Defective Mortgage Loans repurchased
with respect to the prior calendar month, the portion of the Repurchase Price
allocable to principal, (v) any Substitution Adjustment Amounts paid during the
prior calendar month and (vi) on the Distribution Date on which the Mortgage
Loans and related REO Property are sold at auction in accordance with Section
10.01 hereof, that portion of the Termination Price in respect of principal.
Private Certificates: The Class CE, Class P and Class R
Certificates.
Rate Adjustment Date: As to each Mortgage Loan, the Due Date on
which date an adjustment to the Mortgage Interest Rate of such Mortgage Loan
becomes effective under the related Mortgage Note.
Rate Ceiling: The maximum per annum Mortgage Interest Rate permitted
under the related Mortgage Note and indicated on the Mortgage Loan Schedule.
Rating Agency: Each of Moody's and S&P. If either such organization
or a successor is no longer in existence, "Rating Agency" shall be such
nationally recognized statistical rating organization, or other comparable
Person, as is designated by the Depositor, notice of which designation shall be
given to the Trustee, the Servicer and the NIMS Insurer. 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.
Realized Loss Amortization Amount: Any of the Class A-3 Realized
Loss Amortization Amount, the Class M-1 Realized Loss Amortization Amount, the
Class M-2 Realized Loss Amortization Amount, the Class B-1 Realized Loss
Amortization Amount, the Class B-2 Realized Loss Amortization Amount or the
Class B-3 Realized Loss Amortization Amount.
Record Date: With respect to the Class A, Class M and Class B
Certificates, the Business Day immediately preceding such Distribution Date;
provided, however, that if any such Class A, Class M and Class B Certificates
becomes a Definitive Certificate, the Record Date for such Certificate shall be
the last Business Day of the month immediately preceding the month in which the
related Distribution Date occurs and, with respect to the Class CE, Class P and
Class R Certificates, the last Business Day of the month immediately preceding
the month in which the related Distribution Date occurs.
Recovery: As to any Distribution Date and Loan Subgroup, the sum of
all amounts received during the calendar month preceding the month of such
Distribution Date on each Mortgage Loan in such Loan Subgroup subsequent to such
Mortgage Loan being determined to be a Liquidated Mortgage Loan.
Regular Certificates: As defined in the Preliminary Statement
hereto.
Regular Interest LT1AA: One of the separate non-certificated
beneficial ownership interests in the Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the Lower-Tier REMIC. Regular Interest LT1AA
shall accrue interest at the applicable Lower-Tier Rate and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the definition of Uncertificated Lower-Tier Interest.
Regular Interest LT1A1: One of the separate non-certificated
beneficial ownership interests in the Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the Lower-Tier REMIC. Regular Interest LT1A1
shall accrue interest at the applicable Lower-Tier Rate and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the definition of Uncertificated Lower-Tier Interest.
Regular Interest LT1A2: One of the separate non-certificated
beneficial ownership interests in the Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the Lower-Tier REMIC. Regular Interest LT1A2
shall accrue interest at the applicable Lower-Tier Rate and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the definition of Uncertificated Lower-Tier Interest.
Regular Interest LT1A3A: One of the separate non-certificated
beneficial ownership interests in the Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the Lower-Tier REMIC. Regular Interest
LT1A3A shall accrue interest at the applicable Lower-Tier Rate and shall be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the definition of Uncertificated Lower-Tier Interest.
Regular Interest LT1A3B: One of the separate non-certificated
beneficial ownership interests in the Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the Lower-Tier REMIC. Regular Interest
LT1A3B shall accrue interest at the applicable Lower-Tier Rate and shall be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the definition of Uncertificated Lower-Tier Interest.
Regular Interest LT1M1: One of the separate non-certificated
beneficial ownership interests in the Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the Lower-Tier REMIC. Regular Interest LT1M1
shall accrue interest at the applicable Lower-Tier Rate and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the definition of Uncertificated Lower-Tier Interest.
Regular Interest LT1M2: One of the separate non-certificated
beneficial ownership interests in the Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the Lower-Tier REMIC. Regular Interest LT1M2
shall accrue interest at the applicable Lower-Tier Rate and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the definition of Uncertificated Lower-Tier Interest.
Regular Interest LT1B1: One of the separate non-certificated
beneficial ownership interests in the Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the Lower-Tier REMIC. Regular Interest LT1B1
shall accrue interest at the applicable Lower-Tier Rate and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the definition of Uncertificated Lower-Tier Interest.
Regular Interest LT1B2: One of the separate non-certificated
beneficial ownership interests in the Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the Lower-Tier REMIC. Regular Interest LT1B2
shall accrue interest at the applicable Lower-Tier Rate and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the definition of Uncertificated Lower-Tier Interest.
Regular Interest LT1B3: One of the separate non-certificated
beneficial ownership interests in the Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the Lower-Tier REMIC. Regular Interest LT1B3
shall accrue interest at the applicable Lower-Tier Rate and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the definition of Uncertificated Lower-Tier Interest.
Regular Interest LT1GRP: One of the separate non-certificated
beneficial ownership interests in the Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the Lower-Tier REMIC. Regular Interest
LT1GRP shall accrue interest at the applicable Lower-Tier Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the definition of
Uncertificated Lower-Tier Interest.
Regular Interest LT1SUB: One of the separate non-certificated
beneficial ownership interests in the Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the Lower-Tier REMIC. Regular Interest
LT1SUB shall accrue interest at the applicable Lower-Tier Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the definition of
Uncertificated Lower-Tier Interest.
Regular Interest LT1XX: One of the separate non-certificated
beneficial ownership interests in the Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the Lower-Tier REMIC. Regular Interest LT1XX
shall accrue interest at the applicable Lower-Tier Rate and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the definition of Uncertificated Lower-Tier Interest.
Regular Interest LT1ZZ: One of the separate non-certificated
beneficial ownership interests in the Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the Lower-Tier REMIC. Regular Interest LT1ZZ
shall accrue interest at the applicable Lower-Tier Rate and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
Regular Interest LT2GRP: One of the separate non-certificated
beneficial ownership interests in the Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the Lower-Tier REMIC. Regular Interest
LT2GRP shall accrue interest at the applicable Lower-Tier Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the definition of
Uncertificated Lower-Tier Interest.
Regular Interest LT2SUB: One of the separate non-certificated
beneficial ownership interests in the Lower-Tier REMIC issued hereunder and
designated as a Regular Interest in the Lower-Tier REMIC. Regular Interest
LT2SUB shall accrue interest at the applicable Lower-Tier Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the definition of
Uncertificated Lower-Tier Interest.
Reimbursement Amount: As defined in Section 2.02.
Related Loan Subgroup: For Subgroup A, Loan Subgroup A, and for
Subgroup B, Loan Subgroup B.
Related Subgroup: For Loan Subgroup A, Subgroup A, and for Loan
Subgroup B, Subgroup B.
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. "Each REMIC" or "either REMIC" means each
of the Lower-Tier REMIC, and the Upper-Tier REMIC.
REMIC Certificate Maturity Date: The "latest possible maturity date"
of the Regular Certificates as that term is defined in Section 2.06.
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 18th calendar day of each month, of if such day is not a Business
Day, the immediately preceding Business Day.
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 (a) in the case of
the Depositor or the Seller, 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 and (b) in the case of the Servicer, the sum of (i)
the Stated Principal Balance of the Mortgage Loan, (ii) interest on such Stated
Principal Balance at the Mortgage Interest Rate from the date on which interest
has last been paid and distributed through the last day of the month in which
such repurchase takes place and (iii) any costs and damages incurred by the
Trust in connection with any violation by such repurchased Mortgage Loan of any
predatory or abusive lending law, less (x) amounts received or advanced in
respect of such repurchased Mortgage Loan which are being held in the Servicer
Custodial Account for distribution in the month of repurchase and (y) if such
Servicer is servicing such Mortgage Loan under this Agreement, the Servicing Fee
Rate for such Mortgage Loan.
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 Account: The trust account created and maintained by the
Trustee pursuant to Section 3.09(f) which shall be entitled the "Reserve
Account, Xxxxx Fargo Bank, N.A., as Trustee, in trust for registered Holders of
the Offered Certificates of the Banc of America Funding Trust, Series 2005-C"
and which must be an Eligible Account. Amounts on deposit in the Reserve Account
shall not be invested. The Reserve Account shall not be an asset of either REMIC
formed under this Agreement.
Residual Certificate: The Class R Certificate.
Responsible Officer: 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.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor thereto.
Seller: Bank of America, National Association, a national banking
association, or its successor in interest, as seller of the Mortgage Loans under
the Mortgage Loan Purchase Agreement.
Senior Certificates: The Class A Certificates and the Class R
Certificate.
Senior Enhancement Percentage: For any Distribution Date, the
percentage obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balance of the Class M and Class B Certificates before taking into
account the distribution of the Principal Distribution Amount on such
Distribution Date and (ii) the Overcollateralization Amount as of the prior
Distribution Date by (y) the aggregate Stated Principal Balance of the Mortgage
Loans as of the due date in the month of such Distribution Date.
Senior Specified Enhancement Percentage: On any date of
determination thereof, 17.30%.
Senior Principal Distribution Amount: With respect to any
Distribution Date, (i) before the Stepdown Date or as to which a Trigger Event
is in effect, the lesser of (a) the aggregate Class Certificate Balance of the
Class A Certificates immediately prior to such Distribution Date and (b) the
Principal Distribution Amount and (ii) on or after the Stepdown Date and as long
as a Trigger Event is not in effect, the excess of (a) the aggregate Class
Certificate Balance of the Class A Certificates immediately prior to such
Distribution Date over (b) the lesser of (x) the product of (i) 82.70% and (ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the Due Date
in the month of such Distribution Date and (y) the amount by which the aggregate
Stated Principal Balance of the Mortgage Loans as of the Due Date in the month
of such Distribution Date exceeds the product of (i) 0.50% and (ii) the Cut-off
Date Pool Principal Balance for the Mortgage Loans.
Servicer: GreenPoint in its capacity as originator or 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 Remittance Date.
Servicer's Certificate: The monthly reports required by Section
4.01.
Servicer Custodial Account: The separate Eligible Account or
Accounts created and maintained by GreenPoint pursuant to Section 3.09(a).
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.
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 3.15 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 3.13.
Servicing Agreement: The Flow Sale and Servicing Agreement, dated as
of September 1, 2004, by and between Bank of America, National Association and
GreenPoint Mortgage Funding, Inc., as amended by that certain Amendment No. 1,
dated as of October 1, 2004, by and between Bank of America, National
Association and GreenPoint Mortgage Funding, Inc.
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 3.18, (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 3.12) of related Monthly
Payments collected by the Servicer, or as otherwise provided under Section 3.12.
Servicing Fee Rate: With respect to each Mortgage Loan, as set forth
on the Mortgage Loan Schedule.
Servicing File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit P 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 and the
Custodian by such Servicer, as such list may from time to time be amended.
Servicing Transfer Costs: All reasonable costs and expenses of the
Trustee related to any termination of the Servicer, appointment of a successor
Servicer or the transfer and assumption of servicing by the Trustee (including,
without limitation, (i) all legal costs and expenses and all due diligence costs
and expenses associated with an evaluation of the potential termination of the
Servicer as a result of an event of default by such Servicer and (ii) any costs
or expenses associated with the complete transfer of all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the 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).
Similar Law: As defined in Section 6.02(e).
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such date as specified in
the amortization schedule at the time relating thereto (before any adjustment to
such amortization schedule by reason of any moratorium or similar waiver or
grace period) after giving effect to any previous partial Principal Prepayments
and Liquidation Proceeds allocable to principal (other than with respect to any
Liquidated Mortgage Loan) and to the payment of principal due on such Due Date
and irrespective of any delinquency in payment by the related Mortgagor, and
after giving effect to any Deficient Valuation.
Stepdown Date: The earlier to occur of (i) the Distribution Date on
which the aggregate Class Certificate Balance of the Class A Certificates is
reduced to zero and (ii) the later to occur of (x) the Distribution Date in May
2008 and (y) the Distribution Date on which the Senior Enhancement Percentage is
greater than or equal to the Senior Specified Enhancement Percentage.
Sub-Account 1: The sub-account of the Distribution Account
designated by the Trustee pursuant to Section 3.09(e).
Sub-Account 2: The sub-account of the Distribution Account
designated by the Trustee pursuant to Section 3.09(e).
Subgroup: Any of Subgroup A or Subgroup B.
Subgroup A: The Class A-1 and the Class A-3A Component.
Subgroup A Cap: As of any Distribution Date and Subgroup A, a per
annum rate equal to the lesser of (i) 11.00% and (ii) the Net WAC for the
Subgroup A Mortgage Loans (subject to adjustment based on the actual number of
days elapsed in the related Interest Accrual Period).
Subgroup A Interest Remittance Amount: As of any Distribution Date,
the sum, without duplication, of (i) all interest due and collected or advanced
with respect to the payments due on the Subgroup A Mortgage Loans on the Due
Date in the calendar month in which such Distribution Date occurs and received
by the Servicer on or prior to the Determination Date for such Distribution Date
(less the Trustee Fees and Servicing Fees for such Mortgage Loans, amounts
available for reimbursement of Advances pursuant to this Agreement and expenses
and indemnities reimbursable pursuant to this Agreement), (ii) all Compensating
Interest paid by the Servicer for such Distribution Date with respect to the
Subgroup A Mortgage Loans, (iii) the portion of any payment in connection with
any Principal Prepayment, substitution, Repurchase Price, Insurance Proceeds or
net Liquidation Proceeds relating to interest with respect to such Mortgage
Loans received during the prior calendar month, (iv) on the Distribution Date on
which the Subgroup A Mortgage Loans and related REO Property are sold at auction
in accordance with Section 10.01 hereof, that portion of the Termination Price
in respect of interest and (v) any Reimbursement Amount relating to the Subgroup
A Mortgage Loans received during the prior calendar month.
Subgroup A Mortgage Loan: Each Mortgage Loan listed on Exhibit D-1
hereto.
Subgroup A Principal Percentage: With respect to any Distribution
Date and Subgroup A, the percentage equivalent of a fraction, the numerator of
which is the portion of the Principal Remittance Amount for such Distribution
Date allocable to the Subgroup A Mortgage Loans and the denominator of which is
the Principal Remittance Amount for such Distribution Date.
Subgroup B: The Class A-2 and the Class A-3B Component.
Subgroup B Cap: As of any Distribution Date and Subgroup B, a per
annum rate equal to the lesser of (i) 11.00% and (ii) the Net WAC for the
Subgroup B Mortgage Loans (subject to adjustment based on the actual number of
days elapsed in the related Interest Accrual Period).
Subgroup B Interest Remittance Amount: As of any Distribution Date,
the sum, without duplication, of (i) all interest due and collected or advanced
with respect to the payments due on the Subgroup B Mortgage Loans on the Due
Date in the calendar month in which such Distribution Date occurs and received
by the Servicer on or prior to the Determination Date for such Distribution Date
(less the Trustee Fees and Servicing Fees for such Mortgage Loans, amounts
available for reimbursement of Advances pursuant to this Agreement and expenses
and indemnities reimbursable pursuant to this Agreement), (ii) all Compensating
Interest paid by the Servicer for such Distribution Date with respect to the
Subgroup B Mortgage Loans, (iii) the portion of any payment in connection with
any Principal Prepayment, substitution, Repurchase Price, Insurance Proceeds or
net Liquidation Proceeds relating to interest with respect to such Mortgage
Loans received during the prior calendar month, (iv) on the Distribution Date on
which the Subgroup B Mortgage Loans and related REO Property are sold at auction
in accordance with Section 10.01 hereof, that portion of the Termination Price
in respect of interest and (v) any Reimbursement Amount relating to the Subgroup
B Mortgage Loans received during the prior calendar month.
Subgroup B Mortgage Loan: Each Mortgage Loan listed on Exhibit D-2
hereto.
Subgroup B Principal Percentage: With respect to any Distribution
Date and Subgroup B, the percentage equivalent of a fraction, the numerator of
which is the portion of the Principal Remittance Amount for such Distribution
Date allocable to the Subgroup B Mortgage Loans and the denominator of which is
the Principal Remittance Amount for such Distribution Date.
Subgroup Subordinate Amount: With respect to any Distribution Date
and any Loan Subgroup, the excess of the aggregate Stated Principal Balance of
the Mortgage Loans in such Loan Subgroup over the sum of the Class Certificate
Balance of the Class A Certificates of the Related Subgroup and the Component
Balance of the Component of the Related Subgroup immediately prior to such date.
Subordinate Balance Ratio: As of any date of determination, the
ratio between the Uncertificated Principal Balances of Regular Interest LT1SUB
and Regular Interest LT2SUB, equal to the ratio between the Subgroup Subordinate
Amount for Loan Subgroup A and the Subgroup Subordinate Amount for Loan Subgroup
B.
Subordinate Certificates: The Class M Certificates, the Class B
Certificates and the Class CE Certificates.
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 the Stated
Principal Balance of the Defective Mortgage Loan; (ii) have a Net Mortgage
Interest Rate not less than and not more than 2% greater than that of the
Defective Mortgage Loan; (iii) be of the same type as the Defective Mortgage
Loan; (iv) have a Loan-to-Value Ratio not higher than that of the Defective
Mortgage Loan; (v) have a Gross Margin not less than that of the Defective
Mortgage Loan; (vi) have a credit grade not lower in quality than that of the
Defective Mortgage Loan; (vii) have a Periodic Cap and Rate Ceiling equal to
that of the Defective Mortgage Loan; (viii) have the same Index and frequency of
Mortgage Interest Rate Adjustment as the Defective Mortgage Loan; (ix) have a
remaining term to maturity not greater than (and not more than one year less
than) that of the Defective Mortgage Loan; and (x) comply with each Mortgage
Loan representation and warranty set forth in the Servicing Agreement, the
Mortgage Loan Purchase Agreement and 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.
Targeted Overcollateralization Amount: As of any Distribution Date,
(x) prior to the Stepdown Date, 0.80% of the Cut-off Date Pool Principal Balance
and (y) on and after the Stepdown Date, (i) if a Trigger Event has not occurred,
the greater of (A) 1.60% of the aggregate Stated Principal Balance of the
Mortgage Loans as of Due Date in the month of such Distribution Date and (B)
0.50% of the Cut-off Date Pool Principal Balance and (ii) if a Trigger Event has
occurred, the Targeted Overcollateralization Amount for the immediately
preceding Distribution Date.
Tax Matters Person: Any person designated as "tax matters person" in
accordance with Section 5.06 and the manner provided under Treasury Regulations
Section 1.860F-4(d) and Treasury Regulations Section 301.6231(a)(7)-1.
Telerate Page 3750: The display page currently so designated on the
Moneyline Telerate Service (or such other page as may replace the Telerate Page
3750 page on that service for the purpose of displaying London interbank offered
rates of major banks).
Termination Auction: As defined in Section 10.01 hereof.
Termination Price: As defined in Section 10.01 hereof.
Trigger Event: With respect to any Distribution Date, if (i) the
three-month rolling average of 60+ Day Delinquent Loans equals or exceeds 40.00%
of the Senior Enhancement Percentage or (ii) the aggregate amount of Realized
Losses since the Cut-off Date through the Due Date in the month of such
Distribution Date (reduced by the aggregate amount of Recoveries received since
the Cut-off Date through the Due Date in the month of such Distribution Date)
divided by the Cut-off Date Pool Principal Balance exceeds the applicable
percentages set forth below with respect to such Distribution Date:
Distribution Date Occurring In Percentage
------------------------------ ----------
May 2007 through April 2008 0.50%
May 2008 through April 2009 0.80%
May 2009 through April 2010 1.20%
May 2010 through April 2011 1.55%
May 2011 and thereafter 1.80%
Treasury Regulations: The final and temporary regulations
promulgated under the Code by the U.S. Department of the Treasury.
Trust: The trust created by this Agreement, which shall be named
"Banc of America Funding 2005-C Trust."
Trust Estate: The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered hereunder,
with respect to a portion of which two REMIC elections are to be made, such
entire Trust Estate consisting of: (i) such Mortgage Loans as from time to time
are subject to this Agreement, together with the Mortgage Files relating
thereto, and together with all collections thereon and proceeds thereof, (ii)
any REO Property, together with all collections thereon and proceeds thereof,
(iii) the Trustee's rights with respect to the Mortgage Loans under all
insurance policies required to be maintained pursuant to this Agreement and any
proceeds thereof, (iv) the Depositor's rights under the Servicing Agreement and
the Mortgage Loan Purchase Agreement (including any security interest created
thereby), (v) the Trustee's rights under the Yield Maintenance Agreements and
(vi) the Servicer Custodial Account, the Distribution Account and the Reserve
Account and such assets that are deposited therein from time to time and any
investments thereof, together with any and all income, proceeds and payments
with respect thereto.
Trustee: Xxxxx Fargo Bank, N.A., and its successors-in-interest and,
if a successor trustee is appointed hereunder, such successor, as trustee.
Trustee Fee: As to any Distribution Date and Mortgage Loan, an
amount equal to one-twelfth of the Trustee Fee Rate multiplied by the aggregate
Stated Principal Balance of the Mortgage Loan 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, 0.0045% per
annum.
Uncertificated Accrued Interest: With respect to each Uncertificated
Lower-Tier Interest on each Distribution Date, an amount equal to one month's
interest at the applicable Lower-Tier Rate on the Uncertificated Principal
Balance of such Regular Interest. In each case, Uncertificated Accrued Interest
will be reduced by any Prepayment Interest Shortfalls and Relief Act Interest
Shortfalls (allocated to such Regular Interests based on their respective
entitlements to interest irrespective of any Prepayment Interest Shortfalls and
Relief Act Interest Shortfalls for such Distribution Date).
Uncertificated Lower-Tier Interest: A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and is
entitled to monthly distributions as provided in Section 5.09 hereof. Any of the
Regular Interest LT1AA, Regular Interest LT1A1, Regular Interest LT1A2, Regular
Xxxxxxxx XX0X0X, Regular Interest LT1A3B, Regular Interest LT1M1, Regular
Interest LT1M2, Regular Interest LT1B1, Regular Interest LT1B2, Regular Interest
LT1B3, Regular Interest LT1GRP, Regular Interest LT1SUB, Regular Interest LT1XX,
Regular Interest LT1ZZ, Regular Interest LT2GRP and Regular Interest LT2SUB are
Uncertificated Lower-Tier Interests. The Uncertificated Lower-Tier Interests
shall have the following original Uncertificated Principal Balances as of the
Closing Date:
Designation Initial Uncertificated Balance
--------------------------------------------------------------------------------
LT1AA $242,726,948.11
--------------------------------------------------------------------------------
LT1A1 $1,476,510.00
--------------------------------------------------------------------------------
LT1A3A $164,060.00
--------------------------------------------------------------------------------
LT1A2 $559,790.00
--------------------------------------------------------------------------------
LT1A3B $62,200.00
--------------------------------------------------------------------------------
LT1M1 $71,825.00
--------------------------------------------------------------------------------
LT1M2 $54,490.00
--------------------------------------------------------------------------------
LT1B1 $39,630.00
--------------------------------------------------------------------------------
LT1B2 $12,385.00
--------------------------------------------------------------------------------
LT1B3 $16,100.00
--------------------------------------------------------------------------------
LT1ZZ $2,496,621.19
--------------------------------------------------------------------------------
LT1SUB $3,107.01
--------------------------------------------------------------------------------
LT1GRP $35,918.41
--------------------------------------------------------------------------------
LT2SUB $1,177.91
--------------------------------------------------------------------------------
LT2GRP $13,617.71
--------------------------------------------------------------------------------
LT1XX $247,626,738.27
--------------------------------------------------------------------------------
Uncertificated Principal Balance: The amount of any Uncertificated
Lower-Tier Interest outstanding as of any date of determination. As of the
Closing Date, the Uncertificated Balance of each Uncertificated Lower-Tier
Interest shall equal the amount set forth in the definition of "Uncertificated
Lower-Tier Interest" hereto as its initial uncertificated balance. On each
Distribution Date, the Uncertificated Principal Balance of each Uncertificated
Lower-Tier Regular Interest shall be reduced by all distributions of principal
made on such Uncertificated Lower-Tier Regular Interest on such Distribution
Date pursuant to Section 5.09 and, if and to the extent necessary and
appropriate, shall be further reduced on such Distribution Date by Realized
Losses as provided in Section 5.09(b) and shall be increased by all Recoveries
allocated to such Lower-Tier Regular Interest on such Distribution Date pursuant
to Section 5.09(c). The Uncertificated Balance of Regular Interest LT1ZZ shall
be increased by interest deferrals as provided in Section 5.09(a)(i). The
Uncertificated Principal Balance of each Uncertificated Lower-Tier Regular
Interest shall never be less than zero.
Unpaid Realized Loss Amount: For the Class A-3A Component, the Class
A-3B Component, the Class M-1 Certificates, the Class M-2 Certificates, the
Class B-1 Certificates, the Class B-2 Certificates and the Class B-3
Certificates and as to any Distribution Date, the excess of (x) the aggregate
Applied Realized Loss Amounts, Class A-3A Applied Realized Loss Amounts or Class
A-3B Applied Realized Loss Amounts allocated to such Class or Component for all
prior Distribution Dates over (y) the sum of (a) the cumulative amount of any
Recoveries allocated to such Class or Component and (b) the aggregate Realized
Loss Amortization Amounts with respect to such Class or Component for all prior
Distribution Dates.
Upper-Tier Certificate Sub-Account: The sub-account of the
Distribution Account designated by the Trustee pursuant to Section 3.09(e).
Upper-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Uncertificated Lower-Tier Interests and such
amounts as shall from time to time be deemed to be held in the Upper-Tier
Certificate Sub-Account.
U.S. Person: A citizen or resident of the United States, a
corporation or partnership (unless, in the case of a partnership, Treasury
Regulations are adopted that provide otherwise) created or organized in or under
the laws of the United States, any state thereof or the District of Columbia,
including an entity treated as a corporation or partnership for federal income
tax purposes, an estate whose income is subject to United States federal income
tax regardless of its source, or a trust if a court within the United States is
able to exercise primary supervision over the administration of such trust, and
one or more such U.S. Persons have the authority to control all substantial
decisions of such trust (or, to the extent provided in applicable Treasury
Regulations, certain trusts in existence on August 20, 1996 which are eligible
to elect to be treated as U.S. Persons).
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Holders of
the Class CE Certificates, (b) 1% of all Voting Rights shall be allocated to the
Holders of the Class P Certificates, and (c) the remaining Voting Rights shall
be allocated among Holders of the remaining Classes of Certificates (other than
the Class R Certificates) in proportion to the Certificate Balances of their
respective Certificates on such date. The Class R Certificates shall have no
Voting Rights.
Yield Maintenance Agreements: Any of the eight yield maintenance
agreements between the Trustee, on behalf of the Trust, and the Yield
Maintenance Agreement Provider substantially in the form attached hereto as
Exhibit P. The Yield Maintenance Agreements shall not be an asset of either
REMIC formed under this Agreement.
Yield Maintenance Agreement Payment: For each Distribution Date from
June 2005 through the Distribution Date in April 2010, the amount the Yield
Maintenance Agreement Provider is obligated to pay to the Trustee two Business
Days prior to such Distribution Date for deposit into the Reserve Account equal
to the product of (a) the excess of the lesser of (i) One-Month LIBOR and (ii)
11.00% over the applicable strike rate for such Distribution Date, as set forth
on the applicable table in Exhibit P hereto, (b) the cap notional amount for
such Distribution Date as set forth on the table in Exhibit P hereto and (c) a
fraction, the numerator of which is the actual number of days elapsed since the
previous Distribution Date to but excluding the current Distribution Date and
the denominator of which is 360.
Yield Maintenance Agreement Provider: Bank of America, N.A. and any
successor thereto.
Section 1.02 Calculations. All dollar amounts calculated hereunder
shall be rounded to the nearest xxxxx with one-half of one xxxxx being rounded
down.
Section 1.03 Rights of the NIMS Insurer. Each of the rights of the
NIMS Insurer set forth in this Agreement shall exist so long as (i) the NIMS
Insurer has undertaken to guarantee certain payments of notes issued pursuant to
the Indenture and (ii) any series of notes issued pursuant to the Indenture
remains outstanding or the NIMS Insurer is owed amounts in respect of its
guarantee of payment on such notes; provided, however, the NIMS Insurer shall
not have any rights hereunder (except pursuant to Section 11.01 in the case of
clause (ii) below) during the period of time, if any, that (i) the NIMS Insurer
has not undertaken to guarantee certain payments of notes issued pursuant to the
Indenture or (ii) any default has occurred and is continuing under the insurance
policy issued by the NIMS Insurer with respect to such notes.
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), and the Depositor's rights under the Mortgage Loan
Purchase Agreement, including the rights of the Depositor as assignee of the
Seller with respect to the Seller's rights under the Servicing Agreement. 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.
(b) In connection with such transfer and assignment, the Depositor
has delivered or caused to be delivered to the Trustee, or the Custodian on
behalf of the Trustee, for the benefit of the Certificateholders, the following
documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed by manual or facsimile
signature in the following form: "Pay to the order of Xxxxx Fargo Bank,
N.A., as trustee for holders of Banc of America Funding Corporation
Mortgage Pass-Through Certificates, Series 2005-C, without recourse," with
all necessary intervening endorsements showing a complete chain of
endorsement from the originator to the Trustee (each such endorsement
being sufficient to transfer all right, title and interest of the party so
endorsing, as noteholder or assignee thereof, in and to that Mortgage
Note) and, in the case of any Mortgage Loan originated in the State of New
York documented by a NYCEMA, the NYCEMA, the new Mortgage Note, if
applicable, the consolidated Mortgage Note and the consolidated Mortgage;
(ii) except as provided below, the original recorded Mortgage with
evidence of a recording thereon, or if any such Mortgage has not been
returned from the applicable recording office or has been lost, or if such
public recording office retains the original recorded Mortgage, a copy of
such Mortgage certified by the Servicer (which may be part of a blanket
certification) as being a true and correct copy of the Mortgage;
(iii) subject to the provisos at the end of this paragraph, a duly
executed Assignment of Mortgage to "Xxxxx Fargo Bank, N.A., as trustee for
the holders of Banc of America Funding Corporation Mortgage Pass-Through
Certificates, Series 2005-C" (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 Servicer (which may be part of
a blanket certification) as being a true and complete copy of the original
recorded intervening assignments of Mortgage (each such assignment, when
duly and validly completed, to be in recordable form and sufficient to
effect the assignment of and transfer to the assignee thereof, under the
Mortgage to which the assignment relates); provided that, if the related
Mortgage has not been returned from the applicable public recording
office, such Assignment of Mortgage may exclude the information to be
provided by the recording office; and provided, further, if the related
Mortgage has been recorded in the name of Mortgage Electronic Registration
Systems, Inc. ("MERS") or its designee, no Assignment of Mortgage in favor
of the Trustee will be required to be prepared or delivered and instead,
the 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) 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), if an
Assignment of Mortgage is required to be recorded as set forth below, the
Depositor has delivered to the Trustee, or the Custodian on behalf of the
Trustee, a copy of such Assignment of Mortgage in blank rather than in the name
of the Trustee 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). As
set forth on Exhibit J attached hereto is a list of all states where recordation
is required by any 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 J.
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 any of the Servicer, the Seller 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) above, 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, or the Custodian on
behalf of the Trustee, from time to time (1) 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. In the event that the original Mortgage is not delivered and in
connection with the payment in full of the related Mortgage Loan the public
recording office requires the presentation of a "lost instruments affidavit and
indemnity" or any equivalent document, because only a copy of the Mortgage can
be delivered with the instrument of satisfaction or reconveyance, the Depositor
shall prepare, execute and deliver or cause to be prepared, executed and
delivered, on behalf of the Trust, such a document to the public recording
office.
As promptly as practicable subsequent to such transfer and
assignment, 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; provided, however, 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 any Rating Agency in order to obtain
the initial ratings on the Certificates on the Closing Date.
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 behalf of the Trustee, will cause the Servicer
to deposit in the Servicer Custodial Account the portion of such payment that is
required to be deposited in such Servicer Custodial Account pursuant to Section
3.09.
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 delivered to it, in trust for the exclusive use and benefit of all
present and future Certificateholders. Upon execution and delivery of this
document, the Trustee shall deliver, or shall cause the Custodian to deliver, to
the Depositor, the Trustee and the NIMS Insurer a certification in the form of
Exhibit K 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 shall cause the Custodian to review, the Mortgage
Files in its possession, and shall deliver to the Depositor, the Trustee and the
NIMS Insurer a certification in the form of Exhibit L 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 or if the
Depositor, the Servicer, the Trustee or the NIMS Insurer discovers a breach by
the Servicer or the Seller of any representation, warranty or covenant under the
Servicing Agreement or the Mortgage Loan Purchase Agreement in respect of any
Mortgage Loan and such breach materially adversely affects the interest of the
Certificateholders in the related Mortgage Loan (provided that any such breach
that causes the Mortgage Loan not to be a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the code shall be deemed to materially and
adversely affect the interests of the Certificateholders), then such party shall
promptly so notify the Seller or the Servicer, the Trustee, the NIMS Insurer and
the Depositor of such failure to meet the requirements of Section 2.01 or of
such breach and request that the Depositor, the Servicer or the Seller, as the
case may be, deliver such missing documentation or cure such defect or breach
within 90 days of its discovery or its receipt of notice of any such failure to
meet the requirements of Section 2.01 or of such breach. If the Depositor, the
Seller or the Servicer, as the case may be, does not deliver such missing
document or cure such defect or breach in all material respects during such
period, the Trustee shall enforce the obligation of the Depositor, the Servicer
or Seller, as the case may be, under this Agreement, the Servicing Agreement or
the Mortgage Loan Purchase Agreement, as applicable, and cause the Depositor,
the Servicer or the Seller to either (a) in the case of the Seller only,
substitute for the related Mortgage Loan a Substitute Mortgage Loan, which
substitution shall be accomplished in the manner and subject to the conditions
set forth below or (b) purchase such Mortgage Loan from the Trust at the
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 must 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.
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.
In the event of a discovery of a breach of any representation or
warranty of the Servicer or the Seller, the Trustee shall enforce the rights of
the Trust under the Servicing Agreement and the Mortgage Loan Purchase Agreement
for the benefit of the Certificateholders. In the event of a breach of the
representations or warranties with respect to the Mortgage Loans set forth in
the Servicing Agreement, the Trustee shall enforce the right of the Trust to be
indemnified for such breach of representation or warranty. In addition, if a
breach of a representation set forth in clauses (k) and (o) of paragraph 3 of
the Mortgage Loan Purchase Agreement occurs as a result of a violation of an
applicable predatory or abusive lending law, the Trustee shall enforce the right
of the Trust to reimbursement by the Seller for all costs or damages incurred by
the Trust as a result of the violation of such law (such amount, the
"Reimbursement Amount"), but, in the case of a breach of a representation set
forth in clauses (k) and (o) of paragraph 3, only to the extent the Servicer
does not so reimburse the Trust. It is understood and agreed that, except for
any indemnification provided in the Servicing Agreement and the payment of any
Reimbursement Amount, the obligation of the Servicer or the Seller to cure or to
repurchase (or substitute, in the case of the Seller) any Mortgage Loan as to
which a document is missing, a material defect in a constituent document exists
or as to which such a breach has occurred and is continuing shall constitute the
sole remedies against the Servicer or the Seller in respect of such omission,
defect or breach available to the Trustee on behalf of the Certificateholders.
It is understood and agreed that the representations and warranties
set forth in the Mortgage Loan Purchase Agreement shall survive delivery of the
Mortgage Files to the Trustee, or the Custodian on behalf of the Trustee, and
shall inure to the benefit of the Certificateholders notwithstanding any
restrictive or qualified endorsement or assignment. With respect to the
representations and warranties set forth in the Mortgage Loan Purchase Agreement
that are made to the best of the Seller's knowledge or as to which the Seller
had no knowledge, if it is discovered by the Depositor, the NIMS Insurer or the
Trustee that the substance of such representation or warranty is inaccurate and
such inaccuracy materially and adversely affects the interest of the
Certificateholders in the related Mortgage Loan then, notwithstanding the
Seller's lack of knowledge with respect to the substance of such representation
or warranty being inaccurate at the time the representation or warranty was
made, such inaccuracy shall be deemed a breach of the applicable representation
or warranty.
The representations and warranties of the Servicer with respect to
the Mortgage Loans in the Servicing Agreement, which have been assigned to the
Trustee hereunder, were made as of the date specified in the Servicing
Agreement. To the extent that any fact, condition or event with respect to a
Mortgage Loan constitutes a breach of both (i) a representation or warranty of
the Servicer under the Servicing Agreement and (ii) a representation or warranty
of the Seller under the Mortgage Loan Purchase Agreement, the only right or
remedy of the Trustee or of any Certificateholder shall be the Trustee's right
to enforce the obligations of the Servicer under any applicable representation
or warranty made by it. The Trustee acknowledges that the Seller shall have no
obligation or liability with respect to any breach of a representation or
warranty made by it with respect to the Mortgage Loans if the fact, condition or
event constituting such breach also constitutes a breach of a representation or
warranty made by the Servicer in the Servicing Agreement, without regard to
whether the Servicer fulfills its contractual obligations in respect of such
representation or warranty. The Trustee further acknowledges that the Depositor
shall have no obligation or liability with respect to any breach of any
representation or warranty with respect to the Mortgage Loans (except as set
forth in Section 2.04) under any circumstances.
With respect to each Substitute Mortgage Loan, the Seller shall
deliver to the Trustee, or the Custodian on behalf of 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. 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 Seller
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 NIMS Insurer, 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 Servicer 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 the Servicing Agreement. Upon
any such substitution and the remittance to the Trustee for deposit to the
Distribution Account of any required Substitution Adjustment Amount (as
described in the next paragraph) and receipt of a Request for Release, the
Trustee shall, or the Custodian on behalf of the Trustee upon receipt of written
notice from the Trustee of such deposit shall, release the Mortgage File
relating to such Defective Mortgage Loan to the Seller and shall execute and
deliver at the Seller's direction such instruments of transfer or assignment
prepared by the Seller, in each case without recourse, as shall be necessary to
vest title in the Seller, 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 Seller 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 remitted to the
Trustee for deposit to the Distribution Account by the Seller 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 Repurchase Price of any repurchase and the Substitution
Adjustment Amount, if any, shall be remitted to the Trustee for deposit to the
Distribution Account.
The Trustee, or the Custodian on behalf of the Trustee, shall retain
possession and custody of each Mortgage File in accordance with and subject to
the terms and conditions set forth herein. The Servicer shall cause to be
promptly delivered to the Trustee, or the Custodian on behalf of 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 such Servicer's possession from time to time.
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).
The Trustee is hereby directed to execute and deliver, on behalf of
the Trust, the Yield Maintenance Agreements.
Section 2.03 Representations, Warranties and Covenants of the
Servicer.
(a) GreenPoint hereby makes the following representations and
warranties to the Depositor, the NIMS Insurer and the Trustee, as of the Closing
Date:
(i) GreenPoint is a corporation duly organized, validly existing and
in good standing under the laws of the State of New York and has all
licenses necessary to carry on its business as now being conducted and is
licensed, qualified and in good standing in each state 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
GreenPoint, and in any event GreenPoint is in compliance with the laws of
any such state to the extent necessary to ensure the enforceability of the
related Mortgage Loan and the servicing of such Mortgage Loan in
accordance with the terms of this Agreement; GreenPoint has the full
corporate 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 GreenPoint and the consummation of the
transactions contemplated hereby have been duly and validly authorized;
this Agreement evidences the valid, binding and enforceable obligation of
GreenPoint; and all requisite corporate action has been taken by
GreenPoint to make this Agreement valid and binding upon GreenPoint in
accordance with its terms.
(ii) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of GreenPoint.
(iii) Neither the execution and delivery of this Agreement or the
transactions contemplated hereby, nor the fulfillment of or compliance
with the terms and conditions of this Agreement will conflict with or
result in a breach of any of the terms, articles of incorporation or
by-laws or any legal restriction or any agreement or instrument to which
GreenPoint is now a party or by which it is bound, or constitute a default
or result in the violation of any law, rule, regulation, order, judgment
or decree to which GreenPoint or its property is subject, or impair the
value of the Mortgage Loans.
(iv) GreenPoint is an approved seller/servicer of conventional
residential mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac, with the
facilities, procedures, and experienced personnel necessary for the sound
servicing of mortgage loans of the same type as the Mortgage Loans.
GreenPoint is a HUD approved mortgagee pursuant to Section 203 of the
National Housing Act and is in good standing to sell mortgage loans to and
service mortgage loans for Xxxxxx Mae or Xxxxxxx Mac, and no event has
occurred, including but not limited to a change in insurance coverage,
which would make GreenPoint unable to comply with Xxxxxx Mae or Xxxxxxx
Mac eligibility requirements or which would require notification to either
Xxxxxx Mae or Xxxxxxx Mac.
(v) GreenPoint does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant contained
in this Agreement.
(vi) There is no action, suit, proceeding or investigation pending
or to its knowledge threatened against GreenPoint which, either in any one
instance or in the aggregate, may result in any material adverse change in
the business, operations, financial condition, properties or assets of
GreenPoint, or in any material impairment of the right or ability of
GreenPoint to carry on its business substantially as now conducted, or in
any material liability on the part of GreenPoint, or which would draw into
question the validity of this Agreement or of any action taken or to be
contemplated herein, or which would be likely to impair materially the
ability of GreenPoint to perform under the terms of this Agreement.
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by GreenPoint of or compliance by GreenPoint with this
Agreement as evidenced by the consummation of the transactions
contemplated by this Agreement, or if required, such approval has been
obtained prior to the Closing Date.
(viii) Neither this Agreement nor any statement, report or other
document prepared and furnished by or on behalf of GreenPoint or to be
prepared and furnished by or on behalf of GreenPoint pursuant to this
Agreement or in connection with the transactions contemplated hereby
contains any untrue material statement of fact or omits to state a
material fact necessary to make the statements contained therein not
misleading.
(ix) There has been no material adverse change in the business,
operations, financial condition or assets of GreenPoint since the date of
GreenPoint's most recent financial statements.
The representations and warranties made pursuant to this Section
2.03 shall survive delivery of the Mortgage Files to the Trustee, or the
Custodian on behalf of 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 and the
NIMS Insurer with respect to the Mortgage Loans or each Mortgage Loan, as the
case may be, as of the date hereof or such other date set forth herein that as
of the Closing Date:
(i) Immediately prior to the transfer and assignment contemplated
herein, the Depositor was the sole owner and holder of the Mortgage Loans.
The Mortgage Loans were not assigned or pledged by the Depositor and the
Depositor had good and marketable title thereto, and the Depositor had
full right to transfer and sell the Mortgage Loans to the Trustee free and
clear of any encumbrance, participation interest, lien, equity, pledge,
claim or security interest and had full right and authority subject to no
interest or participation in, or agreement with any other party to sell or
otherwise transfer the Mortgage Loans.
(ii) As of the Closing Date, the Depositor has transferred all
right, title and interest in the Mortgage Loans to the Trustee on behalf
of the Trust.
(iii) As of the Closing Date, the Depositor has not transferred the
Mortgage Loans to the Trustee on behalf of the Trust with any intent to
hinder, delay or defraud an of its creditors.
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 on behalf of the Trustee, and shall inure
to the benefit of the Trustee, notwithstanding any restrictive or qualified
endorsement or assignment.
Section 2.05 Designation of Interests in the REMICs. The Depositor
hereby designates Certificates (other than the Class A-3, Class P and Class R
Certificates) and the Components as "regular interests" and the Class UR
Interest as the single class of "residual interest" in the Upper-Tier REMIC for
the purposes of Code Sections 860G(a)(1) and 860G(a)(2), respectively. The
Depositor hereby further designates the Uncertificated Lower-Tier Interests as
classes of "regular interests" and the Class LR Interest as the single class of
"residual interest" in the Lower-Tier REMIC for the purposes of Code Sections
860G(a)(1) and 860G(a)(2), respectively.
Section 2.06 Designation of Start-up Day. The Closing Date is hereby
designated as the "start-up day" of each 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 each REMIC is May 20, 2035.
Section 2.08 Execution and Delivery of Certificates. The Trustee
acknowledges the issuance of and hereby declares that it holds the
Uncertificated Lower-Tier Interests on behalf of the Upper-Tier REMIC and the
holders of Certificates (other than the Class P and Class R Certificates) and
the Class R Certificate (in respect of the Class UR Interest), and (ii) has
executed and delivered to or upon the order of the Depositor, in exchange for
the Mortgage Loans, the Uncertificated Lower-Tier Interests, together with all
other assets included in the definition of "Trust Estate," receipt of which is
hereby acknowledged, Certificates in authorized denominations which, together
with the Uncertificated Lower Tier Interests, evidence ownership of the entire
Trust Estate.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans. For and on behalf
of the Certificateholders, GreenPoint shall service and administer the Mortgage
Loans, 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 3.22. 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 such Servicer or any Subservicer, as the
case may be, believes it appropriate in its reasonable judgment, to execute and
deliver, on behalf of the Trustee, the Depositor, the Certificateholders or any
of them, any and all instruments of satisfaction or cancellation, or of partial
or full release or discharge, and all other comparable instruments, with respect
to the Mortgage Loans it services, and with respect to the related Mortgaged
Properties held for the benefit of the Certificateholders. The Servicer shall
prepare and deliver to the Depositor and/or the Trustee such documents requiring
execution and delivery by any or all of them as are necessary or appropriate to
enable the Servicer to service and administer the Mortgage Loans it services to
the extent that the Servicer is not permitted to execute and deliver such
documents pursuant to the preceding sentence. Upon receipt of such documents,
the Depositor and/or the Trustee, upon the direction of the Servicer, shall
promptly execute such documents and deliver them to the Servicer.
In accordance with the standards of the preceding paragraph, the
Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the payment of taxes and assessments on the Mortgaged
Properties relating to the Mortgage Loans it services, which Servicing Advances
shall be reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.10, and further as provided in Section 3.13.
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 the
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 any 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 Agreement 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.
Any Subservicing Agreement, and any other transactions or services
relating to the Mortgage Loans involving a Subservicer, shall be deemed to be
between the Servicer and such Subservicer alone, and the Trustee and the
Certificateholders shall not be deemed parties thereto and shall have no claims
or rights of action against, rights, obligations, duties or liabilities to or
with respect to the Subservicer or its officers, directors or employees, except
as set forth in Section 3.01.
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. In the event that any such
policy or bond ceases to be in effect, the Servicer shall obtain a comparable
replacement policy or bond from an insurer or issuer, meeting the requirements
set forth above as of the date of such replacement.
Section 3.04 Access to Certain Documentation.
The 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 without charge, but only upon
reasonable and prior written request and during normal business hours at the
offices designated by the Servicer. Nothing in this Section 3.04 shall limit the
obligation of the Servicer to observe any applicable law and the failure of the
Servicer to provide access as provided in this Section 3.04 as a result of such
obligation shall not constitute a breach of this Section 3.04.
Section 3.05 Maintenance of Primary Mortgage Insurance Policy;
Claims.
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 Mortgage 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 Mortgage
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 Mortgage Insurance Policy. If the insurer
shall cease to be an insurer acceptable to FNMA, 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
Mortgage Insurance Policy for such reason. If the Servicer determines that
recoveries under the Primary Mortgage 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 Mortgage 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 3.14, the Servicer shall promptly notify the
insurer under the Primary Mortgage Insurance Policy, if any, of such assumption
or substitution of liability in accordance with the terms of such Primary
Mortgage 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
Mortgage Insurance Policy. If such Primary Mortgage Insurance Policy is
terminated as a result of such assumption or substitution of liability, the
Servicer shall obtain a replacement Primary Mortgage 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 Mortgage Insurance
Policy in a timely fashion in accordance with the terms of such Primary Mortgage
Insurance Policy and, in this regard, to take such action as shall be necessary
to permit recovery under any Primary Mortgage Insurance Policy respecting a
defaulted Mortgage Loan. Pursuant to Section 3.10(a), any amounts collected by
the Servicer under any Primary Mortgage Insurance Policy shall be deposited in
the related Escrow Account, subject to withdrawal pursuant to Section 3.10(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, each Primary Mortgage Insurance Policy, 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.
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 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 (or
any Subservicer) hereunder or otherwise.
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 3.13 or any acts or omissions of such
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 the 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 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.
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 Premium 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 3.21 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.
Section 3.09 Collection of Mortgage Loan Payments; Servicer
Custodial Account, Distribution Account and Reserve Account. (a) GreenPoint
shall establish and maintain a Servicer Custodial Account. GreenPoint 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:
(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) deposited to an Escrow Account
pursuant to Section 3.10(a) and other than any Excess Proceeds and (B) any
Insurance Proceeds released from an Escrow Account pursuant to Section
3.10(b)(iv);
(iv) any amount required to be deposited by the Servicer pursuant to
Section 3.09(c) 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 3.15 or any Prepayment Premiums required to be remitted by the
Servicer;
(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
3.21 and any Compensating Interest;
(viii) any Recovery; and
(ix) 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, any 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 that such commingling of funds with respect to the Servicer
shall not be permitted at any time during which S&P's senior short-term
unsecured debt rating of the Servicer falls below "A-2." 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 3.09. 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 3.12.
(b) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Distribution Account, which shall be deemed to consist
of three sub-accounts. The Trustee shall, promptly upon receipt, deposit in the
Distribution Account and retain therein the following:
(i) the aggregate amount remitted by the Servicer to the Trustee
pursuant to Section 3.12(a)(viii);
(ii) any amount paid by the Trustee pursuant to Section 3.09(c) in
connection with any losses on Permitted Investments with respect to the
Distribution Account; and
(iii) any other amounts deposited hereunder which are required to be
deposited in the Distribution 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
Distribution 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 Distribution
Account. All funds required to be deposited in the Distribution 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 3.12. In
no event shall the Trustee incur liability for withdrawals from the Distribution
Account at the direction of the Servicer.
(c) Each institution at which the Servicer Custodial Account or the
Distribution 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 Distribution 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 Distribution 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 Distribution Account shall be for the benefit of the Trustee as
compensation for its duties hereunder and shall be retained by it monthly as
provided herein. The amount of any losses realized in the Servicer Custodial
Account or the Distribution 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 Distribution Account, as applicable.
(d) The Servicer shall give notice to the Trustee and the NIMS
Insurer of any proposed change of the location of the Servicer Custodial Account
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, the NIMS
Insurer and the Depositor of any proposed change of the location of the
Distribution 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 and
the Distribution Account shall be evidenced by a certification substantially in
the form of Exhibit F hereto.
(e) The Trustee shall designate each of Sub-Account 1, Sub-Account 2
and the Upper-Tier Certificate Sub-Account as a sub-account of the Distribution
Account. On each Distribution Date, the Trustee shall, from funds available on
deposit in the Distribution Account (and deemed on deposit in Sub-Account 1 and
Sub-Account 2, as applicable), be deemed to deposit into the Upper-Tier
Sub-Account, the Lower-Tier Distribution Amount.
(f) (i) The Trustee shall establish and maintain the Reserve
Account, which account shall be held in trust for the benefit of the Holders of
the Offered Certificates. The Trustee shall deposit in the Reserve Account on
the date received by it, any Yield Maintenance Agreement Payments received from
the Yield Maintenance Agreement Provider for the related Distribution Date.
Funds on deposit in the Reserve Account shall remain uninvested. On each
Distribution Date, the Trustee shall withdraw from the Reserve Account any Yield
Maintenance Agreement Payments and apply them in the following order of
priority:
(A) to the Offered Certificates, any remaining unpaid Cap
Carryover Amounts for such classes for such Distribution Date (after
distributions pursuant to Section 5.02(c)(xix) hereof, sequentially,
as follows:
(i) first, concurrently, to the Class A-1 and Class A-2
Certificates, pro rata (based on the Cap Carryover Amount for
each such Class);
(ii) second, concurrently, to the Class A-3A and Class
A-3B Components, pro rata (based on the Cap Carryover Amount
for each such Component); and
(iii) third, sequentially, to the Class M-1
Certificates, the Class M-2 Certificates, the Class B-1
Certificates, the Class B-2 Certificates and the Class B-3
Certificates, in that order; and
(B) to the Class CE Certificates, any remaining amounts on
deposit in the Reserve Account.
(ii) The Trustee shall account for the Reserve Account as an asset
of the Grantor Trust and not an asset of either REMIC created pursuant to
this Agreement. The beneficial owner of the Reserve Account is the Class
CE Certificateholder. For all federal tax purposes, amounts transferred or
reimbursed by the Upper-Tier REMIC to the Reserve Account shall be treated
as distributions by the Trustee to the Class CE Certificateholder.
(iii) Any Cap Carryover Amounts paid by the Trustee pursuant to this
Section 3.09(f) to the Offered Certificates shall be accounted for by the
Trustee as amounts paid first to the Class CE Certificates and then to the
Offered Certificates from the Grantor Trust. In addition, the Trustee
shall account for the Offered Certificates' rights to receive payments of
Cap Carryover Amounts as rights in limited recourse interest rate cap
contracts written by the Class CE Certificates in favor of the Offered
Certificates.
(g) For federal tax return and information reporting, the right of
the Holders of the Offered Certificates to receive payments under the Yield
Maintenance Agreements in respect of any related Yield Maintenance Agreement
Payments shall be assigned a value of zero.
(h) Any Prepayment Premiums deposited pursuant to Section 3.09(a)(v)
shall not be assets of either REMIC created hereunder, but shall be considered
assets of the Grantor Trust held by the Trustee for the benefit of the Class P
Certificateholders.
Section 3.10 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 "GreenPoint, in trust for
registered holders of Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2005-C 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 Mortgage 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 3.10(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 it services, 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 Mortgage 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 3.11 Access of Trustee and NIMS Insurer to Certain
Documentation and Information Regarding the Mortgage Loans.
The Servicer shall afford the Trustee and the NIMS Insurer
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 3.12 Permitted Withdrawals from the Servicer Custodial
Account and the Distribution Account.
(a) The Servicer may from time to time make withdrawals from the
Servicer Custodial Account, for the following purposes:
(i) to pay itself (to the extent not previously retained), the
Servicing Compensation to which it is entitled pursuant to Section 3.18;
(ii) to reimburse itself or the Trustee for unreimbursed Advances
made by it, such right of reimbursement pursuant to this clause (ii) being
limited first to amounts received on the Mortgage Loans in the related
Loan Subgroup as the Mortgage Loans in respect of which any such Advance
was made and then limited to amounts received on all the Mortgage Loans;
(iii) to reimburse itself for any Nonrecoverable Advance previously
made, such right of reimbursement pursuant to this clause (iii) being
limited first to amounts received on the Mortgage Loans in the same Loan
Subgroup as the Mortgage Loans in respect of which such Nonrecoverable
Advance was made and then limited to amounts received on all the Mortgage
Loans;
(iv) to reimburse itself 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, 2.04 or
3.15(b), all amounts received thereon after the date of such purchase;
(vi) to reimburse itself or the Depositor for expenses incurred by
any of them and reimbursable pursuant to this Agreement, including but not
limited to, Section 3.02 and 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 Interest Remittance Amount, the Principal Remittance Amount
and any Monthly Excess Cashflow 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 Distribution Account; and
(ix) to clear and terminate the Servicer Custodial Account upon
termination of this Agreement pursuant to Section 10.01.
The Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Servicer Custodial Account pursuant to clauses (i), (ii),
(iv) and (v). The Servicer shall keep and maintain such separate accounting for
each Mortgage Loan. 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.
In connection with any failure by the Servicer to make any
remittance required to be made by the Servicer to the Distribution Account on
the day and by the time such remittance is required to be made under this
Agreement (without giving effect to any grace or cure period), the Servicer
shall pay the Trustee for the account of the Trustee interest at the rate
published in The Wall Street Journal as the "Prime Rate" on any amount not
timely remitted from and including the day such remittance was required to be
made to, but not including, the day on which such remittance was actually made.
(b)The Trustee shall withdraw funds from the Distribution 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 Distribution 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 Distribution Account and
any other amounts due to the Trustee (other than the Trustee Fee) under
this Agreement for the related Distribution Date;
(iii) to withdraw and return to the Servicer any amount deposited in
the Distribution Account and not required to be deposited therein; and
(iv) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 10.01.
(c) On each Distribution Date, funds on deposit in the Distribution
Account and deemed to be on deposit in the Upper-Tier Certificate Sub-Account
shall be used to make payments on the Offered Certificates, the Class CE
Certificates and the Class R Certificate in respect of the Class UR Interest as
provided in Section 5.02. The Distribution Account shall be cleared and
terminated upon termination of this Agreement pursuant to Section 10.01.
Section 3.13 Maintenance of Hazard Insurance and Other 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
3.12(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 3.13. 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 3.13 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 3.13 and the amount paid under such
blanket policy.
Section 3.14 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
(a) Except as otherwise provided in this Section 3.14, 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 3.14(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
3.14(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 3.14 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 3.14(a), in any case in which a Mortgaged
Property has been conveyed to a Person by a Mortgagor, and such Person is to
enter into an assumption agreement or modification agreement or supplement to
the Mortgage Note or Mortgage that requires the signature of the Trustee, or if
an instrument of release signed by the Trustee is required releasing the
Mortgagor from liability on the Mortgage Loan, the Servicer shall prepare and
deliver or cause to be prepared and delivered to the Trustee for signature and
shall direct, in writing, the Trustee to execute the assumption agreement with
the Person to whom the Mortgaged Property is to be conveyed and such
modification agreement or supplement to the Mortgage Note or Mortgage or other
instruments as are reasonable or necessary to carry out the terms of the
Mortgage Note or Mortgage or otherwise to comply with any applicable laws
regarding assumptions or the transfer of the Mortgaged Property to such Person.
In no event shall the Trustee incur liability for executing any document under
this Section 3.14 at the direction of the Servicer. In connection with any such
assumption, no material term of the Mortgage Note may be changed. In addition,
the substitute Mortgagor and the Mortgaged Property must be acceptable to the
Servicer in accordance with its underwriting standards as then in effect.
Together with each such substitution, assumption or other agreement or
instrument delivered to the Trustee for execution, the Servicer shall deliver an
Officer's Certificate signed by a Servicing Officer stating that the
requirements of this subsection have been met. The Servicer shall notify the
Trustee that any such substitution or assumption agreement has been completed by
forwarding to the Trustee (or at the direction of the Trustee, the Custodian)
the original of such substitution or assumption agreement, which in the case of
the original shall be added to the related Mortgage File and shall, for all
purposes, be considered a part of such Mortgage File to the same extent as all
other documents and instruments constituting a part thereof. Any fee collected
by the Servicer for entering into an assumption or substitution of liability
agreement may be retained by the Servicer as additional Servicing Compensation.
Notwithstanding the foregoing, to the extent permissible under applicable law
and at the request of the Servicer, the Trustee shall execute and deliver to the
Servicer any powers of attorney and other documents prepared by the Servicer
that are reasonably necessary or appropriate to enable the Servicer to execute
any assumption agreement or modification agreement required to be executed by
the Trustee under this Section 3.14.
Section 3.15 Realization Upon Defaulted Mortgage Loans; REO
Property.
(a) Subject to Section 3.22, 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.
Notwithstanding the foregoing, the Servicer shall not be required to expend its
own funds in connection with any foreclosure or towards the restoration of any
Mortgaged Property unless it shall determine (i) that such restoration and/or
foreclosure will increase the proceeds of liquidation of the Mortgage Loan after
reimbursement to itself of such expenses and (ii) that such expenses will be
recoverable to it through proceeds of the liquidation of the Mortgage Loan
(respecting which it shall have priority for purposes of withdrawals from the
Servicer Custodial Account). Any such expenditures shall constitute Servicing
Advances for purposes of this Agreement.
The decision of the Servicer to foreclose on a defaulted Mortgage
Loan shall be subject to a determination by the Servicer that the proceeds of
such foreclosure would exceed the costs and expenses of bringing such a
proceeding.
With respect to any REO Property, the deed or certificate of sale
shall be taken in the name of the Trust for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. The
name of the Trust shall be placed on the title to such REO Property. The
Servicer shall ensure that the title to such REO Property references this
Agreement. 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, such Servicer may rent the same, or any
part thereof, as such 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 serviced by such Servicer 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
either REMIC created hereunder or cause the Trust Estate to fail to qualify as
two REMICs at any time that any Certificates are outstanding, or (B) the Trustee
(at such 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 either 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 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 3.12(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 3.18.
(b) On the second Business Day prior to the related Distribution
Date, the Servicer shall notify the Depositor and the NIMS Insurer of any
Mortgage Loan which is 180 days or more delinquent. The Depositor shall be
entitled, at its option, or pursuant to direction from the NIMS Insurer, to
repurchase any such delinquent Mortgage Loan from the Trust Estate if in the
Depositor's (or NIMS Insurer's) judgment, the default is not likely to be cured
by the Mortgagor. The purchase price for any such Mortgage Loan shall be 100% of
the unpaid principal balance of such Mortgage Loan plus accrued interest thereon
at the Mortgage Interest Rate through the last day of the month in which such
repurchase occurs. The Depositor shall notify the Servicer of its intent to
repurchase such Mortgage Loan. Upon the receipt of such purchase price, the
Trustee, or the Custodian on behalf of the Trustee, shall promptly release to
the Depositor or the NIMS Insurer, as the case may be, the Mortgage File
relating to the Mortgage Loan being repurchased.
Section 3.16 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 at the Servicer's direction execute and deliver to the Servicer the
request for reconveyance, deed of reconveyance or release or satisfaction of
mortgage or such instrument releasing the lien of the Mortgage, in each case
provided by the Servicer, together with the Mortgage Note with written evidence
of cancellation thereon. If the Mortgage has been recorded in the name of MERS
or its designee, the 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.
The Trustee shall execute and deliver to the Servicer any powers of
attorney and other documents prepared by the Servicer that are reasonably
necessary or appropriate in the judgment of the Trustee to enable the Servicer
to carry out its servicing and administrative duties under this Agreement, upon
the request of the Servicer. In addition, 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 is authorized to give, as attorney-in-fact for
the Trustee and the mortgagee under the Mortgage, 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 3.17 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. 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, Distribution 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 3.18 Servicing Compensation.
The Servicer shall be entitled out of each payment of interest on a
Mortgage Loan (or portion thereof) 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 3.09(a). 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.
Notwithstanding the foregoing, with respect to the payment of the
Servicing Fee on any Distribution Date, the aggregate Servicing Fee for the
Servicer for such Distribution Date shall be reduced (but not below zero) by an
amount equal to the lesser of (a) the aggregate Servicing Fee payable to the
Servicer for such Distribution Date for the Mortgage Loans and (b) the aggregate
Prepayment Interest Shortfall for the Mortgage Loans for such Distribution Date
(any such reduction, "Compensating Interest"). To the extent that Compensating
Interest for the Servicer is calculated pursuant to clause (a) of the previous
sentence, such Compensating Interest shall be allocated to the Subgroup A
Mortgage Loans and the Subgroup B Mortgage Loans, pro rata, based on the
aggregate Prepayment Interest Shortfalls for such Distribution Date on the
Mortgage Loans in such Subgroup.
Section 3.19 Annual Statement as to Compliance.
The Servicer shall deliver to the Trustee (and the Trustee will
forward to the Trustee, the NIMS Insurer and each Rating Agency), no later than
March 20 following the end of each calendar year commencing with March 2006, 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 3.20 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
No later than March 20 following the end of each calendar year
commencing with March 2006, the Servicer shall, at its own expense, 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 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. The Trustee shall provide a copy of each such
report to the NIMS Insurer.
Section 3.21 Advances.
The Servicer shall determine on or before the 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 with respect to the
Mortgage Loans in the Servicer Custodial Account has been used by the Servicer
in discharge of its obligation to make any such Periodic Advance. 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. If the Servicer fails to make any required Periodic
Advance, the Trustee shall make such Periodic Advance not later than the
Business Day preceding each related Distribution Date for the period prior to
the appointment of a successor Servicer. The Servicer shall be entitled to be
reimbursed from the Servicer Custodial Account and the Trustee shall be entitled
to be reimbursed from the Distribution Account, for all Periodic Advances of its
own funds made pursuant to this Section 3.21 as provided in Section 3.12(a) or
(b). 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 the Servicer
Advance Date no later than the related Remittance Date.
The Servicer shall deliver to the Trustee on the 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, neither the Servicer nor the
Trustee shall be required to make any Advance that would be a Nonrecoverable
Advance.
Section 3.22 Modifications, Waivers, Amendments and Consents.
(a) Subject to this Section 3.22, 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 3.14,
which waiver, if any, shall be governed by Section 3.14), forbearance or
amendment of any term of any Mortgage Loan if such modification, waiver,
forbearance, or amendment would:
(i) affect the amount or timing of any related payment of principal,
interest or other amount payable thereunder;
(ii) 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
(iii) otherwise constitute a "significant modification" within the
meaning of Treasury Regulations Section 1.860G-2(b);
unless, in the case of clauses (ii) and (iii) 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 either REMIC created hereunder
and, in either case, such modification, waiver, forbearance or amendment is
reasonably likely, in the Servicer's judgment, to produce a greater recovery
with respect to such Mortgage Loan than would liquidation. 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 (or, at the direction
of the Trustee, the Custodian) a copy thereof and (ii) shall deliver to the
Trustee (or, at the direction of the Trustee, the Custodian) such document, with
evidence of notification upon receipt thereof from the public recording office.
Section 3.23 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") (or other comparable form) 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 and file (via the Securities
and Exchange Commission's Electronic Data Gathering and Retrieval System) such
Forms (other than any Annual Report on Form 10-K, which shall be signed by the
Depositor) on behalf of the Trust.
(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 5.06(b) (each, a "Distribution
Date Statement") for such Distribution Date as an exhibit thereto. On or 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 3.19 and the accountants'
reports referenced under Section 3.20, 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 M (the "Certification"), which shall be signed
by a senior officer of the Depositor in charge of securitization. The Depositor
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 3.23, 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 Depositor a
certification (in the form attached hereto as Exhibit N) for the benefit of the
Depositor 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 Depositor, each person, if any, who "controls" the Depositor
within the meaning of the 1933 Act, as amended and their respective officers,
directors, agents and affiliates (collectively, the "Depositor Indemnified
Parties") 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 3.23(c), any breach by the
Trustee or any of its officers, directors, agents or affiliates of its
obligations under this Section 3.23(c) or any material misstatements or omission
contained in the certification delivered pursuant to this Section 3.23(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 Depositor Indemnified Parties, then the Trustee agrees that it
shall contribute to the amount paid or payable by such Depositor Indemnified
Parties as a result of the losses, claims, damages or liabilities of such
Depositor Indemnified Parties in such proportion as is appropriate to reflect
the relative fault of such Depositor Indemnified Parties on the one hand and the
Trustee on the other in connection with a breach of the Trustee's obligations
under this Section 3.23(c), any material misstatement or omission contained in
the certification delivered pursuant to this Section 3.23(c) or the Trustee's
negligence, bad faith or willful misconduct in connection therewith. The
Servicer hereby acknowledge and agree that the Depositor and the Trustee are
relying on the Servicer's performance of its obligations under Sections 3.19 and
3.20 in order to perform their respective obligations under this Section 3.23.
(d) Prior to the latest date on which the Form 10-K may be timely
filed each year, the Servicer shall sign and deliver to the Depositor a
certification (in the form attached hereto as Exhibit O, with such modification
thereto as shall be reasonably required in connection with any changes made by
the Securities and Exchange Commission to any certification requirement under
Section 302 of the Xxxxxxxx-Xxxxx Act) for the benefit of the Depositor
Indemnified Parties. In addition, the Servicer shall indemnify and hold harmless
the Depositor Indemnified Parties 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 Servicer pursuant to this
Section 3.23(d), any breach of the Servicer's obligations under this Section
3.23(d) or the Servicer's negligence, bad faith or willful misconduct in
connection therewith. If the indemnification provided for herein is unavailable
or insufficient to hold harmless the Depositor Indemnified Parties, then the
Servicer agrees that it shall contribute to the amount paid or payable by the
Depositor Indemnified Parties as a result of the losses, claims, damages or
liabilities of the Depositor Indemnified Parties in such proportion as is
appropriate to reflect the relative fault of the Depositor Indemnified Parties
on the one hand and the Servicer on the other in connection with a breach of the
Servicer's obligations under this Section 3.23(d) or the Servicer's negligence,
bad faith or willful misconduct in connection therewith.
(e) 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.
(f) The obligations set forth in paragraphs (a) through (e) 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 pursuant to paragraph (b) of this
Section. Upon request of 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.
ARTICLE IV
SERVICER'S CERTIFICATE
Section 4.01 Servicer's Certificate.
Each month, not later than 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
out of the Distribution 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 Certificate (other than a Residual
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.
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) Interest Distributions:
On each Distribution Date, the Trustee shall withdraw from the
Distribution Account (to the extent funds are available therein) (1) the amount
payable to the Trustee pursuant to Sections 3.12(b)(i) and (ii) and shall pay
such funds to itself, and (2) the Interest Remittance Amount and apply it in the
following order of priority (based upon the Mortgage Loan information provided
to it in the Servicer's Certificates, upon which the Trustee may conclusively
rely):
first, concurrently, as follows:
(i) concurrently, from the Subgroup A Interest Remittance
Amount, to the Class A-1 Certificates and Class A-3A Component, pro
rata, the applicable Accrued Certificate Interest and Accrued
Component Interest thereon for such Distribution Date; and
(ii) concurrently, from the Subgroup B Interest Remittance
Amount, to Class A-2 Certificates and Class A-3B Component, pro
rata, the applicable Accrued Certificate Interest and Accrued
Component Interest thereon for such Distribution Date;
second, concurrently, as follows:
(i) concurrently, from the Subgroup A Interest Remittance
Amount, to the Class A-1 Certificates and Class A-3A Component, pro
rata, the applicable Interest Carryforward Amount thereon for such
Distribution Date; and
(ii) concurrently, from the Subgroup B Interest Remittance
Amount, to the Class A-2 Certificates and Class A-3B Component, pro
rata, the applicable Interest Carryforward Amount thereon for such
Distribution Date;
third, concurrently, as follows:
(i) concurrently, from the Subgroup A Interest Remittance
Amount to the Class A-2 Certificates and Class A-3B Component, pro
rata, any unpaid Accrued Certificate Interest or Accrued Component
Interest thereon for such Distribution Date; and
(ii) concurrently, from the Subgroup B Interest Remittance
Amount to the Class A-1 Certificates and Class A-3A Component, pro
rata, any unpaid Accrued Certificate Interest or Accrued Component
Interest thereon for such Distribution Date;
fourth, concurrently, as follows:
(i) concurrently, from the Subgroup A Interest Remittance
Amount, to the Class A-2 Certificates and Class A-3B Component, pro
rata, any unpaid Interest Carryforward Amount thereon for such
Distribution Date; and
(ii) concurrently, from the Subgroup B Interest Remittance
Amount, to the Class A-1 Certificates and Class A-3A Component, pro
rata, any unpaid Interest Carryforward Amount thereon for such
Distribution Date;
fifth, to the Class M-1 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date;
sixth, to the Class M-2 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date;
seventh, to the Class B-1 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date;
eighth, to the Class B-2 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date;
ninth, to the Class B-3 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date; and
tenth, the amount, if any, of the Interest Remittance Amount
remaining after application with respect to the priorities set forth above
will be applied as described under Section 5.02(c) hereof.
(b) Distributions of Principal:
On each Distribution Date, the Trustee shall withdraw from the
Distribution Account (to the extent funds are available therein) the Principal
Distribution Amount and shall make the following distributions in the following
order of priority (based upon the Mortgage Loan information provided to it in
the Servicer's Certificate, upon which the Trustee may conclusively rely):
(i) before the Stepdown Date or with respect to which a Trigger
Event is in effect, as follows:
first, concurrently, as follows:
(1) concurrently, from the Subgroup A Principal Percentage of the
Senior Principal Distribution Amount, to the Class A-1 Certificates
and to the Class A-3A Component, pro rata, until the Class
Certificate Balance and the Component Balance thereof have been
reduced to zero;
(2) concurrently, from the Subgroup B Principal Percentage of the
Senior Principal Distribution Amount, to the Class A-2 Certificates
and to the Class A-3B Component, pro rata, until the Class
Certificate Balance and the Component Balance thereof have been
reduced to zero;
second, concurrently, as follows:
(1) concurrently, from the Subgroup A Principal Percentage of the
Senior Principal Distribution Amount remaining after priority first
above, to the Class A-2 Certificates and to the Class A-3B
Component, pro rata, until the Class Certificate Balance and the
Component Balance thereof have been reduced to zero; and
(2) concurrently, from the Subgroup B Principal Percentage of the
Senior Principal Distribution Amount remaining after priority first
above, to the Class A-1 Certificates and to the Class A-3A
Component, pro rata, until the Class Certificate Balance and the
Component Balance thereof have been reduced to zero;
third, to the Class M-1 Certificates, until the Class Certificate
Balance thereof has been reduced to zero;
fourth, to the Class M-2 Certificates, until the Class Certificate
Balance thereof has been reduced to zero;
fifth, to the Class B-1 Certificates, until the Class Certificate
Balance thereof has been reduced to zero;
sixth, to the Class B-2 Certificates, until the Class Certificate
Balance thereof has been reduced to zero;
seventh, to the Class B-3 Certificates, until the Class Certificate
Balance thereof has been reduced to zero; and
eighth, any remaining Principal Distribution Amount will be
distributed as part of the Monthly Excess Cashflow Amount as set forth in
Section 5.02(c).
(ii) on or after the Stepdown Date and as long as a Trigger Event is
not in effect, as follows:
first, concurrently, as follows:
(1) concurrently, from the Subgroup A Principal Percentage of the
Senior Principal Distribution Amount, to the Class A-1 Certificates
and to the Class A-3A Component, pro rata, until the Class
Certificate Balance and the Component Balance thereof have been
reduced to zero;
(2) concurrently, from the Subgroup B Principal Percentage of the
Senior Principal Distribution Amount, to the Class A-2 Certificates
and to the Class A-3B Component, pro rata, until the Class
Certificate Balance and the Component Balance thereof have been
reduced to zero;
second, concurrently, as follows:
(1) concurrently, from the Subgroup A Principal Percentage of the
Senior Principal Distribution Amount remaining after priority first
above, to the Class A-2 Certificates and to the Class A-3B
Component, pro rata, until the Class Certificate Balance and the
Component Balance thereof have been reduced to zero; and
(2) concurrently, from the Subgroup B Principal Percentage of the
Senior Principal Distribution Amount remaining after priority first
above, to the Class A-1 Certificates and to the Class A-3A
Component, pro rata, until the Class Certificate Balance and the
Component Balance thereof have been reduced to zero;
third, to the Class M-1 Certificates, up to the Class M-1 Principal
Distribution Amount, until the Class Certificate Balance thereof has been
reduced to zero;
fourth, to the Class M-2 Certificates, up to the Class M-2 Principal
Distribution Amount, until the Class Certificate Balance thereof has been
reduced to zero;
fifth, to the Class B-1 Certificates, up to the Class B-1 Principal
Distribution Amount, until the Class Certificate Balance thereof has been
reduced to zero; and
sixth, to the Class B-2 Certificates, up to the Class B-2 Principal
Distribution Amount, until the Class Certificate Balance thereof has been
reduced to zero; and
seventh, to the Class B-3 Certificates, up to the Class B-3
Principal Distribution Amount, until the Class Certificate Balance thereof
has been reduced to zero; and
eighth, any remaining Principal Distribution Amount will be
distributed as part of the Monthly Excess Cashflow Amount as set forth in
Section 5.02(c).
(c) Distributions of Monthly Excess Cashflow Amounts:
On each Distribution Date, any Monthly Excess Cashflow Amount shall
be distributed, to the extent available, in the following order of priority on
such Distribution Date:
(i) concurrently, to the Class A Certificates and Components,
pro rata, any remaining Accrued Certificate Interest or Accrued
Component Interest for such Class or Component for such Distribution
Date;
(ii) concurrently, to the Class A Certificates and Components,
pro rata, any Interest Carry Forward Amount for such Class or
Component for such Distribution Date;
(iii) concurrently, to the Components, pro rata in accordance
with their Unpaid Realized Loss Amounts, any Class A-3 Realized Loss
Amortization Amount;
(iv) to pay any remaining unpaid Accrued Certificate Interest
for such Distribution Date for the Class M-1 Certificates;
(v) to pay the remaining Interest Carry Forward Amount, if
any, for the Class M-1 Certificates;
(vi) to pay any Class M-1 Realized Loss Amortization Amount
for such Distribution Date;
(vii) to pay any remaining unpaid Accrued Certificate Interest
for such Distribution Date for the Class M-2 Certificates;
(viii) to pay the remaining Interest Carry Forward Amount, if
any, for the Class M-2 Certificates;
(ix) to pay any Class M-2 Realized Loss Amortization Amount
for such Distribution Date;
(x) to pay any remaining unpaid Accrued Certificate Interest
for such Distribution Date for the Class B-1 Certificates;
(xi) to pay the remaining Interest Carry Forward Amount, if
any, for the Class B-1 Certificates;
(xii) to pay any Class B-1 Realized Loss Amortization Amount
for such Distribution Date;
(xiii) to pay any remaining unpaid Accrued Certificate
Interest for such Distribution Date for the Class B-2 Certificates;
(xiv) to pay the remaining Interest Carry Forward Amount, if
any, for the Class B-2 Certificates;
(xv) to pay any Class B-2 Realized Loss Amortization Amount
for such Distribution Date;
(xvi) to pay any remaining unpaid Accrued Certificate Interest
for such Distribution Date for the Class B-3 Certificates;
(xvii) to pay the remaining Interest Carry Forward Amount, if
any, for the Class B-3 Certificates;
(xviii) to pay any Class B-3 Realized Loss Amortization Amount
for such Distribution Date;
(xix) sequentially, any Cap Carryover Amount for each class or
Component, as follows:
(a) first, concurrently, to the Class A-1 and Class A-2
Certificates, pro rata (based on the Cap Carryover Amount for
each such class);
(b) second, concurrently, to the Class A-3A and Class
A-3B Components, pro rata (based on the Cap Carryover Amount
for each such Component); and
(c) third, sequentially, to the Class M-1, Class M-2,
Class B-1, Class B-2 and Class B-3 Certificates, in that
order; and
(xx) to pay to the Class CE Certificates, up to the Class CE
Distributable Amount for such Distribution Date.
On each Distribution Date, there shall be distributed to the Holder
of the Class R Certificate, any remaining amount in the Distribution Account in
respect of the Mortgage Loans on such date after the application pursuant to
Sections 5.02(a), 5.02(b) and 5.02(c)(i)-(xx).
(d) Any amounts distributed to the Offered Certificates in respect
of interest pursuant to Section 5.02(c)(xix) which constitute Cap Carryover
Amounts shall first be deemed distributed by as a distribution to the Class CE
Certificates, and then distributed to the Certificates from the Grantor Trust as
payments on notional principal contracts in the nature of cap contracts. Any
remaining amount with respect to the Class CE Certificates or any remaining
Yield Maintenance Agreement Payment shall be treated as having been distributed
to the Holders of the Class CE Certificates from the Grantor Trust.
(e) On each Distribution Date, Unpaid Realized Loss Amounts on the
Offered Certificates will be reduced by the amount of any Recoveries relating to
the Mortgage Loans received during the prior calendar month in the same order as
Realized Loss Amortization Amounts are paid to the Offered Certificates pursuant
to Section 5.02(c) above.
(f) Notwithstanding any other provision of this Section 5.02, no
Class Certificate Balance of a Class of Certificates or Component Balance of a
Component will be increased on any Distribution Date such that the Class
Certificate Balance of such Class or Component Balance of such Component, as
applicable, exceeds its Initial Class Certificate Balance or Initial Component
Balance, as applicable, less all distributions of principal previously
distributed in respect of such Class or Component on prior Distribution Dates.
(g) On each Distribution Date, the Trustee shall withdraw any
amounts then on deposit in the Distribution Account that represent Prepayment
Premiums and shall distribute such amounts to the Holders of the Class P
Certificates. Such amounts shall be treated as having been distributed to the
Holders of the Class P Certificates from the Grantor Trust.
Section 5.03 Allocation of Losses.
Any Applied Realized Loss Amount for a Distribution Date will be
allocated in reduction of the Class Certificate Balances of the Class B-3, Class
B-2, Class B-1, Class M-2 and Class M-1 Certificates, in that order and until
the respective Class Certificate Balances thereof are reduced to zero.
On the Distribution Date on which the application of the Applied
Realized Loss Amount would reduce the Class Certificate Balance of the Class M-1
Certificates to zero, (i) the portion of the Applied Realized Loss Amount
related to the Subgroup A Mortgage Loans shall be applied in reduction of the
aggregate Class Certificate Balance of the Class B and Class M Certificates in
the order set forth in the paragraph above in an amount up to the product of (a)
the fraction, the numerator of which is the portion of the Applied Realized Loss
Amount related to the Subgroup A Mortgage Loans and the denominator of which is
the Applied Realized Loss Amount and (b) the aggregate Class Certificate Balance
of the Class B and Class M Certificates and (ii) the portion of the Applied
Realized Loss Amount related to the Subgroup B Mortgage Loans shall be applied
in reduction of the aggregate Class Certificate Balance of the Class B and Class
M Certificates in the order set forth in the paragraph above in an amount up to
the product of (a) the fraction, the numerator of which is the portion of the
Applied Realized Loss Amount related to the Subgroup B Mortgage Loans and the
denominator of which is the Applied Realized Loss Amount and (b) the aggregate
Class Certificate Balance of the Class B and Class M Certificates.
On and after the Distribution Date on which the Class Certificate
Balance of the Class M-1 Certificate has been reduced to zero, the Class A-3A
Applied Realized Loss Amount for such Distribution Date will be allocated in
reduction of the Component Balance of the Class A-3A Component and the Class
A-3B Applied Realized Loss Amount for such Distribution Date will be allocated
in reduction of the Component Balance of the Class A-3B Component, until the
Component Balance of each such Component has been reduced to zero.
On and after the Distribution Date on which the Component Balance of
a Component has been reduced to zero due to the application of a Class A-3A
Applied Realized Loss Amount or Class A-3B Applied Realized Loss Amount, as
applicable, any remaining Class A-3A Applied Realized Loss Amount or Class A-3B
Applied Realized Loss Amount, as applicable, will be allocated in reduction of
the Component Balance of the remaining Component and on all subsequent
Distribution Dates, any Applied Realized Loss Amount will be allocated in
reduction of the Component Balance of the remaining Component until reduced to
zero.
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 Certificate 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, the Class CE Distributable
Amount;
(iii) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on such Distribution
Date;
(iv) the Overcollateralization Amount, the Overcollateralization
Release Amount, the Overcollateralization Deficiency and the Targeted
Overcollateralization Amount as of such Distribution Date and the Monthly
Excess Interest Amount and Monthly Excess Cashflow Amount for such
Distribution Date;
(v) for Loan Subgroup A and Loan Subgroup B, the aggregate Stated
Principal Balance of the Mortgage Loans, the Subgroup A Mortgage Loans and
Subgroup B Mortgage Loans, as applicable, as of the Due Date in the month
of such Distribution Date;
(vi) the amount of the Servicing Fee paid to or retained by the
Servicer with respect to such Distribution Date;
(vii) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(viii) 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;
(ix) the number and aggregate principal amounts of Mortgage Loans
(A) delinquent (exclusive of Mortgage Loans in foreclosure or in
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;
(x) 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;
(xi) 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;
(xii) the Accrued Certificate Interest in respect of each Class of
Certificates for such Distribution Date and any related Cap Carryover
Amounts, and the respective portions thereof, if any, remaining unpaid
following the distributions made in respect of such Certificates on such
Distribution Date;
(xiii) the Cap Carryover Amounts distributed on such Distribution
Date, the amounts remaining after giving effect to distributions thereof
on such Distribution Date, the amount of all Cap Carryover Amounts covered
by withdrawals from the Reserve Account on such Distribution Date;
(xiv) whether a Trigger Event has occurred and is continuing, and
the cumulative Realized Losses, as a percentage of the original aggregate
Stated Principal Balance;
(xv) the Available Funds;
(xvi) the aggregate amount of Realized Losses or Applied Realized
Loss Amounts, as applicable, incurred during the preceding calendar month
for such Distribution Date separately identifying any reduction thereof
due to the allocations of Realized Losses or Applied Realized Loss
Amounts;
(xvii) the amount of Recoveries and Reimbursement Amounts; and
(xviii) the amount of the distribution made on such Distribution
Date to the Holders of the Class P Certificates.
(b) No later than each Distribution Date, the Trustee, based upon
information supplied to it on the Servicer' Certificates, shall make available
to 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 make
available 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 Certificateholders, the NIMS Insurer
and other parties to this Agreement via the Trustee's Internet website. The
Trustee's Internet website shall initially be 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 the NIMS Insurer and 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) and (ii) 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 Holder of
Certificates with respect to amounts which should be included as interest and
original issue discount in such Holders' gross income and (iii) information to
be provided to all Holders of Certificates setting forth the percentage of each
REMIC's assets, determined in accordance with Treasury Regulations using a
convention, not inconsistent with Treasury Regulations, selected by the 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 each
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, each 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 each 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 each 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 obtain for each REMIC a
taxpayer identification number on Form SS-4 or as otherwise permitted by the
Internal Revenue Service, and shall furnish or cause to be furnished to the
Internal Revenue Service, on Form 8811 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 each REMIC for its
short taxable year ending December 31, 2005, REMIC status shall be elected for
each REMIC for such taxable year and all succeeding taxable years.
(d) The Trustee will maintain or cause to be maintained such records
relating to each 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 each 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 R Certificate is hereby designated as the Tax Matters Person for each
REMIC. By its acceptance of the Residual Certificate, such Holder irrevocably
appoints the Trustee as its agent to perform all of the duties of the Tax
Matters Person for each 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 each REMIC as a REMIC and avoid
the imposition of tax on either REMIC created hereunder. In particular:
(a) The Trustee shall not create, or permit the creation of, any
"interests" in either REMIC within the meaning of Code Section 860D(a)(2) other
than the interests represented by the Regular Certificates, the Residual
Certificate and the Uncertificated Lower-Tier Interests.
(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 each REMIC
constitutes either "qualified mortgages" or "permitted investments" as defined
in Code Sections 860G(a)(3) and (5), respectively, and (ii) no property shall be
contributed to either 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 either REMIC any fee
or other compensation for services and none of the Trustee or 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 Sections 2.02 or
3.16(f)), unless such sale is pursuant to a "qualified liquidation" of the
applicable REMIC as defined in Code Section 860F(a)(4)(A) and in accordance with
Article X.
(e) The Trustee shall maintain books with respect to the Trust and
each REMIC on a calendar year taxable year and on an accrual basis.
(f) None of the Servicer or the Trustee shall engage in a
"prohibited transaction" (as defined in Code Section 860F(a)(2)), except that,
with the prior written consent of the 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 either REMIC created hereunder and will not disqualify
the Trust Estate from treatment as two REMICs; 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 REMIC Distributions.
(a) On each Distribution Date, the Trustee shall cause in the
following order of priority, the following amounts to be distributed by the
Lower-Tier REMIC to the Upper-Tier REMIC on account of the Uncertificated
Regular Interests (such amount, the "Lower-Tier Distribution Amount"):
(i) to Holders of Regular Interest LT1AA, Regular Interest
LT1A1, Regular Interest LT1A2, Regular Xxxxxxxx XX0X0X, Regular
Interest LT1A3B, Regular Interest LT1M1, Regular Interest LT1M2,
Regular Interest LT1B1, Regular Interest LT1B2, Regular Interest
LT1B3 and Regular Interest LT1ZZ, pro rata, in an amount equal to
(A) the Uncertificated Accrued Interest for such Distribution Date,
plus (B) any amounts in respect thereof remaining unpaid from
previous Distribution Dates. Amounts payable as Uncertificated
Accrued Interest in respect of Regular Interest LT1ZZ shall be
reduced and deferred when the LT Overcollateralized Amount is less
than the LT Overcollateralization Target Amount, by the lesser of
(x) the amount of such difference and (y) the Maximum LT1ZZ
Uncertificated Accrued Interest Deferral Amount and such amount will
be payable to the Holders of Regular Interest LT1A1, Regular
Interest LT1A2, Regular Xxxxxxxx XX0X0X, Regular Interest LT1A3B,
Regular Interest LT1M1, Regular Interest LT1M2, Regular Interest
LT1B1, Regular Interest LT1B2 and Regular Interest LT1B3 in the same
proportion as the Overcollateralization Deficiency is allocated to
the Corresponding Certificates;
(ii) to Holder of Regular Interest LT1XX, in an amount equal
to (A) the Uncertificated Accrued Interest for such Distribution
Date, plus (B) any amounts in respect thereof remaining unpaid from
previous Distribution Dates;
(iii) to the Holders of Interests, in an amount equal to the
remainder of the LT Marker Allocation Percentage of Available Funds
for such Distribution Date after the distributions made pursuant to
clause (i) above, allocated as follows:
(A) to Regular Interest LT1AA, 98.00% of such remainder,
until the Uncertificated Principal Balance of such
Uncertificated Lower-Tier Interest is reduced to zero;
(B) to Regular Interest LT1A1, Regular Interest LT1A2,
Regular Xxxxxxxx XX0X0X, Regular Interest LT1A3B, Regular
Interest LT1M1, Regular Interest LT1M2, Regular Interest
LT1B1, Regular Interest LT1B2 and Regular Interest LT1B3,
1.00% of such remainder, in the same proportion as principal
payments are allocated to the Corresponding Classes or
Components, until the Uncertificated Principal Balances of
such Uncertificated Lower-Tier Interests are reduced to zero;
then
(C) to Regular Interest LT1ZZ, 1.00% of such remainder,
until the Uncertificated Principal Balance of such
Uncertificated Lower-Tier Interest is reduced to zero;
provided, however, that (i) 98.00% and (ii) 2.00% of any
principal payments that are attributable to an
Overcollateralization Release Amount shall be allocated to (i)
Regular Interest LT1AA and (ii) Regular Interest LT1ZZ,
respectively; and
(iv) to the Holders of Uncertificated Lower-Tier Interests, in
an amount equal to the LT Sub WAC Allocation Percentage of Available
Funds for such Distribution Date after the distributions made
pursuant to clause (i) above, such that distributions of principal
shall be deemed to be made to the Lower-Tier Regular Interests
first, so as to keep the Uncertificated Principal Balance of each
Lower-Tier Regular Interest ending with the designation "GRP" equal
to 0.01% of the Pool Principal Balance of the Related Loan Subgroup;
second, to each Lower-Tier Regular Interest ending with the
designation "SUB," so that the Uncertificated Principal Balance of
each such Lower-Tier Regular Interest is equal to 0.01% of the
related Subgroup Subordinate Amount (except that if any such excess
is a larger number than on the preceding Distribution Date, the
least amount of principal shall be distributed to such Lower-Tier
Regular Interests such that the Subordinate Balance Ratio is
maintained); and third, any remaining principal to Regular Interest
LT1XX.
(b) The Trustee shall cause the following allocation of losses:
(i) The LT Marker Allocation Percentage of the aggregate
amount of any Prepayment Interest Shortfalls and the LT Marker
Allocation Percentage of the aggregate amount of any Relief Act
Interest Shortfalls incurred in respect of the Mortgage Loans for
any Distribution Date shall be allocated first, to Uncertificated
Accrued Interest payable to Regular Interest LT1AA and Regular
Interest LT1ZZ up to an aggregate amount equal to the LT Interest
Loss Allocation Amount, 98% and 2%, respectively, and thereafter
among Regular Interest LT1AA, Regular Interest LT1A1, Regular
Interest LT1A2, Regular Xxxxxxxx XX0X0X, Regular Interest LT1A3B,
Regular Interest LT1M1, Regular Interest LT1M2, Regular Interest
LT1B1, Regular Interest LT1B2, Regular Interest LT1B3 and Regular
Interest LT1ZZ, pro rata, based on, and to the extent of, one
month's interest at the then applicable Lower-Tier Rate on the
respective Uncertificated Principal Balance of each such
Uncertificated Lower-Tier Interest;
(ii) The LT Sub WAC Allocation Percentage of the aggregate
amount of any Prepayment Interest Shortfalls and the LT Sub WAC
Allocation Percentage of the aggregate amount of any Relief Act
Interest Shortfalls incurred in respect of the Mortgage Loans for
any Distribution Date shall be allocated first, to the
Uncertificated Accrued Interest payable to Regular Interest LT1SUB,
Regular Interest LT1GRP, Regular Interest LT2SUB, Regular Interest
LT2GRP and Regular Interest LT1XX, pro rata, based on, and to the
extent of, one month's interest at the then applicable Lower-Tier
Rate on the related Uncertificated Principal Balance of each such
Uncertificated Lower-Tier Interest;
(iii) The LT Marker Allocation Percentage of all Realized
Losses on the Mortgage Loans shall be allocated by the Trustee on
each Distribution Date to the following Uncertificated Lower-Tier
Interests in the specified percentages, as follows: first, to
Uncertificated Accrued Interest payable to Regular Interest LT1AA
and Regular Interest LT1ZZ up to an aggregate amount equal to the LT
Interest Loss Allocation Amount, 98% and 2%, respectively; second,
to the Uncertificated Principal Balances of Regular Interest LT1AA
and Regular Interest LT1ZZ up to an aggregate amount equal to the LT
Principal Loss Allocation Amount, 98% and 2%, respectively; third,
to the Uncertificated Principal Balances of Regular Interest LT1AA,
Regular Interest LT1B3 and Regular Interest LT1ZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of Regular
Interest LT1B3 has been reduced to zero; fourth, to the
Uncertificated Principal Balances of Regular Interest LT1AA, Regular
Interest LT1B2 and Regular Interest LT1ZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of Regular
Interest LT1B2 has been reduced to zero; fifth, to the
Uncertificated Principal Balances of Regular Interest LT1AA, Regular
Interest LT1B1 and Regular Interest LT1ZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of Regular
Interest LT1B1 has been reduced to zero; sixth, to the
Uncertificated Principal Balances of Regular Interest LT1AA, Regular
Interest LT1M2 and Regular Interest LT1ZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of Regular
Interest LT1M2 has been reduced to zero; and seventh, to the
Uncertificated Principal Balances of Regular Interest LT1AA, Regular
Interest LT1M1 and Regular Interest LT1ZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of Regular
Interest LT1M1 has been reduced to zero; and
(iv) The LT Sub WAC Allocation Percentage of all Realized
Losses shall be applied after all distributions have been made on
each Distribution Date first, so as to keep the Uncertificated
Principal Balance of each Regular Interest ending with the
designation "GRP" equal to 0.01% of the Pool Principal Balance of
the related Loan Subgroup; second, to each Regular Interest ending
with the designation "SUB," so that the Uncertificated Principal
Balance of each such Regular Interest is equal to 0.01% of the
related Subgroup Subordinate Amount (except that if any such excess
is a larger number than on the preceding Distribution Date, the
least amount of Realized Losses shall be applied to such Lower-Tier
Regular Interests such that the Subordinate Balance Ratio is
maintained); and third, any remaining Realized Losses shall be
allocated to Regular Interest LT1XX.
(c) With respect to the Lower-Tier REMIC, any increase in principal
balance due to a Recovery shall be allocated as follows:
(i) The LT Sub WAC Allocation Percentage of Recoveries shall
be applied first, so as to keep the Uncertificated Principal Balance
of each Lower-Tier Regular Interest ending with the designation
"GRP" equal to 0.01% of the aggregate Stated Principal Balance of
the Mortgage Loans in the related Subgroup; second, to each
Lower-Tier Regular Interest ending with the designation "SUB," so
that the Uncertificated Principal Balance of each such Lower-Tier
Regular Interest is equal to 0.01% of the excess of (x) the
aggregate Principal Balance of the Mortgage Loans in the related
Loan Subgroup over (y) the current Certificate Balance of the Senior
Certificates or Components in the related Loan Subgroup (except that
if any such excess is a larger number than in the preceding
distribution period, the least amount of Recoveries shall be applied
to such Lower-Tier Regular Interests such that the Subordinate
Balance Ratio is maintained); and third, any remaining Recoveries
shall be allocated to Regular Interest LT1XX.
(ii) The LT Marker Percentage of Recoveries shall be allocated
98% to Regular Interest LT1AA, 1% to Regular Interest LT1ZZ and 1%
to the Lower-Tier Regular Interests that are Corresponding Classes
to any Classes of Certificates or Components that were increased as
a result of such Recovery so that the Uncertificated Principal
Balance of each such Corresponding Class of Lower-Tier Regular
Interests equals 0.5% of the Corresponding Class of Certificates or
Components after taking into account such Recoveries; provided, that
if less than 1% of the LT Marker Allocation Percentage of Recoveries
is needed to restore the Corresponding Classes of Lower-Tier Regular
Interests as described in this paragraph, any excess amount shall be
allocated to Regular Interest LT1ZZ.
(d) Notwithstanding anything to the contrary contained herein, the
above distributions in this Section 5.09 (other than on the Certificates) are
deemed distributions, and distributions of funds from the Distribution Account
shall be made only in accordance with Sections 5.01 and 5.02 hereof.
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates. The Classes of Senior Certificates,
the Subordinate Certificates and the Class P Certificates shall be substantially
in the forms set forth in Exhibits X-X-0, X-X-0, X-X-0, B-M-1, X-X-0, X-X-0,
X-X-0, X-X-0, X-XX, X-X, X-X 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 minimum denominations of initial
Certificate Balance and integral multiples in excess thereof set forth in the
Preliminary Statement. The Class A Certificates, Class M-1, Class M-2, 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 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, 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 Book-Entry
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 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. 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 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 Depositor, 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 of an Opinion of Counsel
satisfactory to the Trustee 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 a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Residual
Certificate unless such Ownership Interest is a pro rata undivided
interest.
(iii) In connection with any proposed transfer of any Ownership
Interest in a Residual Certificate, the 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 a Residual
Certificate to such proposed transferee shall be effected.
(v) No Ownership Interest in a Residual Certificate may be purchased
by or transferred to any Person that is not a U.S. Person, unless (A) such
Person holds such Residual Certificate in connection with the conduct of a
trade or business within the United States and furnishes the transferor
and the 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 a Residual Certificate will not be disregarded for
federal income tax purposes.
(vi) Any attempted or purported transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
6.02 shall be absolutely null and void and shall vest no rights in the
purported transferee. If any purported transferee shall, in violation of
the provisions of this Section 6.02, become a Holder of a Residual
Certificate, then the prior Holder of such Residual Certificate that is a
Permitted Transferee shall, upon discovery that the registration of
transfer of such Residual Certificate was not in fact permitted by this
Section 6.02, be restored to all rights as Holder thereof retroactive to
the date of registration of transfer of such Residual Certificate. The
Trustee shall be under no liability to any Person for any registration of
transfer of a Residual Certificate that is in fact not permitted by this
Section 6.02 or for making any distributions due on such Residual
Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of the Agreement so long as the
transfer was registered in accordance with this Section 6.02. The Trustee
shall be entitled to recover from any Holder of a Residual Certificate
that was in fact not a Permitted Transferee at the time such distributions
were made all distributions made on such Residual Certificate. Any such
distributions so recovered by the 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 a 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 a 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, the
Trustee, the Certificate Registrar and any agent of the Depositor, the Servicer,
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, the Trustee, the NIMS
Insurer, the Certificate Registrar or any agent of the Depositor, the Servicer,
the Trustee, the NIMS Insurer 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 such 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 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 negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. None of the Depositor or 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 3.12.
Section 7.04 Depositor and Servicer Not to Resign. Subject to the
provisions of Section 7.02, none of the Depositor or 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. 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
such Servicer's responsibilities and obligations in accordance with Section 8.05
hereof.
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 remit amounts to the Trustee for
deposit to the Distribution 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
which continues unremedied by 3:00 P.M. New York time on the related
Distribution Date; or
(b) failure on the part of the Servicer duly to observe or perform
in any material respect any other covenants or agreements of such 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 such Servicer by the Trustee, the NIMS Insurer or the Depositor, or to such
Servicer, the Depositor, the NIMS Insurer 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;
then, and in each and every such case, so long as an Event of Default shall not
have been remedied by the Servicer, either the Trustee or the Depositor may, and
at the direction of the Holders of Certificates evidencing Voting Rights
aggregating not less than 51% of all Certificates affected thereby shall, by
notice then given in writing to the Servicer (and to the Trustee, if given by
the Depositor, and to the Depositor, if given by the Trustee), terminate all of
the rights and obligations of the Servicer under this Agreement. 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 and Section 8.05(a), 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 a successor Servicer and amending this Agreement to reflect
such succession as the Servicer pursuant to this Section 8.01 shall be paid by
such 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 satisfactory to it against the costs,
expenses and liabilities which may be incurred therein or thereby and, provided
further, that, subject to the provisions of Section 9.01, the Trustee shall have
the right to decline to follow any such direction if the Trustee, based upon an
Opinion of Counsel, determines that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith determines that the action or
proceeding so directed would subject the Trustee to a risk of personal liability
or be unjustly prejudicial to the non-assenting Certificateholders.
Section 8.04 Action upon Certain Failures of the Servicer and upon
Event of Default. In the event that a Responsible Officer of the Trustee shall
have actual knowledge of any failure of the 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. If a Responsible Officer of the Trustee shall have knowledge of
an Event of Default, the Trustee shall give prompt written notice thereof to the
Certificateholders.
Section 8.05 Trustee to Act; Appointment of Successor.
(a) Within 90 days of the time the Servicer receives a notice of
termination pursuant to Section 8.01, the Trustee (or other named successor)
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 a
successor Servicer, immediately will assume all of the obligations of the
Servicer under this Agreement, (ii) the Trustee, in its capacity as a 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 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 the Servicer, nor shall any successor Servicer be liable for any
acts or omissions of the predecessor Servicer or for any breach by such
predecessor 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 as
it and such successor shall agree, not to exceed the predecessor Servicer's
compensation hereunder.
(c) Any successor, including the Trustee, to the Servicer as the
Servicer shall during the term of its service as the Servicer maintain in force
(i) a policy or policies of insurance covering errors and omissions in the
performance of its obligations as the 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 and to the NIMS Insurer and 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 as duties of the Trustee. 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; provided, however, that the
Trustee shall not be responsible for the accuracy of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Servicer or the Depositor hereunder.
(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
specified in clauses (a) and (b) of Section 8.01 or an Event of Default
under clauses (c) and (d) 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 Responsible Officer of
the Trustee receives written notice of such failure or event at its
Corporate Trust Office from the Servicer, the NIMS Insurer, 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
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 or security
satisfactory to it 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 and the manner of
obtaining consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to the reasonable
regulations as the Trustee may prescribe;
(ii) The Trustee may consult with counsel and any written advice or
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 written advice or Opinion of
Counsel;
(iii) The Trustee shall not be under any obligation to exercise any
of the trusts or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders, pursuant to
the provisions of this Agreement, unless such Certificateholders shall
have offered to the Trustee reasonable security or indemnity satisfactory
to it 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 or security satisfactory to
it against such expense or liability or payment of such estimated expenses
as a condition to so proceeding;
(vi) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents,
attorneys, accountants, custodian or independent contractor; and
(vii) the right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the
Trustee shall not be answerable for other than its gross negligence or
willful misconduct in the performance of any such act.
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 on the Certificates) shall be taken as the statements
of the Depositor or the 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.
The Trustee shall not at any time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Mortgage or any Mortgage Loan, or the perfection and priority of any
Mortgage or the maintenance of any such perfection and priority or for or with
respect to the sufficiency of the Trust or its ability to generate the payments
to be distributed to Certificateholders under this Agreement, including, without
limitation: the existence, condition and ownership of any Mortgaged Property;
the existence and enforceability of any hazard insurance thereon (other than if
the Trustee shall assume the duties of the Servicer pursuant to Section 8.05 and
thereupon only for the acts or omissions of the Trustee as a 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 a 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 a
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 the Servicer) or any Subservicer; the failure of the Servicer to act
or perform any duties required of it as agent of the Trust or 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 a
successor Servicer) or any Subservicer; 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 (or Custodian's) review
of the Mortgage Files pursuant to Section 2.02. The Trustee shall execute and
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 or any of their 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 $50,000,000.00 and subject to
supervision or examination by Federal or State authority and (c) with respect to
every successor trustee or hereunder either an institution (i) the long-term
unsecured debt obligations of which are rated at least "A" by S&P and "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. The principal office of the Trustee (other than the
initial Trustee) shall be in a state with respect to which an Opinion of Counsel
has been delivered to such Trustee at the time such Trustee is appointed Trustee
to the effect that the Trust will not be a taxable entity under the laws of such
state. In case at any time the Trustee 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, the NIMS Insurer and the Depositor 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 Depositor shall use its best efforts to promptly
appoint a 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 Depositor, 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 Depositor
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 Depositor and the Trustee; the Depositor shall
thereupon use its best efforts to appoint a 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 Depositor
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; provided, however, that if the predecessor Trustee has been removed
pursuant to the third paragraph of Section 9.06, all reasonable expenses of the
predecessor Trustee incurred in complying with this Section 9.07 shall be
reimbursed by the Trust.
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 Depositor shall cooperate to mail notice of the
succession of such Trustee hereunder to the NIMS Insurer, all Holders of
Certificates at their addresses as shown in the Certificate Register and to each
Rating Agency. If the Depositor 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 Depositor.
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 Depositor 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 Depositor and
the Trustee may consider necessary or desirable. If the Depositor shall not have
joined in such appointment within ten days after the receipt by it of a request
to do so, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor Trustee under Section 9.05 and no notice to Holders
of Certificates of the appointment of co-trustee(s) or separate trustee(s) shall
be required under Section 9.07. The Trustee shall be responsible for the fees of
any co-trustee or separate trustee appointed hereunder.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 9.09, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the 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
Depositor 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 Depositor. 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 Depositor. 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
Depositor 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 and held harmless by the Trust against
any claims, damage, loss, liability or expense (including reasonable attorney's
fees) (a) incurred in connection with or arising from or relating to (i) this
Agreement, (ii) the Certificates, or (iii) the performance of any of the
Trustee's duties hereunder, other than any claims, damage, loss, liability or
expense incurred by reason of willful misfeasance, bad faith or gross negligence
in the performance of any of the Trustee's 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 Residual Certificate not in compliance with
ERISA. 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. The provisions of this Section 9.11 shall survive the
termination of this Agreement or the resignation or removal of the Trustee
hereunder.
Section 9.12 Appointment of Custodian. The Trustee may at any time
on or after the Closing Date, with the consent of the Depositor and the
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 Distribution Account and
distributions to Certificateholders as provided in Section 3.09 and Section
5.02. Wherever reference is made in this Agreement to withdrawal from the
Distribution 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
Distribution Account as the Trustee shall request from time to time. Each Paying
Agent must be reasonably acceptable to the Depositor 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 Depositor; provided that the Paying Agent
has returned to the Distribution Account or otherwise accounted, to the
reasonable satisfaction of the Trustee, for all amounts it has withdrawn from
the Distribution Account. The Trustee may, upon prior written approval of the
Depositor, at any time terminate the agency of any Paying Agent by giving
written notice of termination to such Paying Agent and to the Depositor. 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 Depositor, a successor Paying Agent, shall
give written notice of such appointment to the 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 preceding 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 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 of all the Mortgage Loans and all REO
Property relating thereto by an Auction Winner or (b) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Estate and the disposition of all REO Property.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than 10% of the aggregate unpaid principal
balance of the related Mortgage Loans as of the Cut-off Date (the "Auction
Date"), the Trustee will initiate an auction process (the "Termination Auction")
to sell such Mortgage Loans and the related REO Property. The Trustee may not
sell such Mortgage Loans and related REO Property unless the proceeds of the
sale, after deduction of the expenses of the sale (including expenses for
previously attempted but unsuccessful Termination Auctions) and all unreimbursed
fees and advances (the "Minimum Bid Price"), is at least equal to the sum of the
aggregate unpaid principal balance plus accrued interest for each Mortgage Loan
at the related Mortgage Interest Rate to but not including the first day of the
month in which such proceeds are distributed and the aggregate fair market value
of the related REO Property (as determined by the Servicer) as of the close of
business on the third Business Day next preceding the date upon which notice of
any such termination is furnished to Certificateholders pursuant to the sixth
paragraph of this Article X).
A Termination Auction may not occur until all Reimbursement Amounts
for the Mortgage Loans subject to such Termination Auction have been paid. The
Trustee shall determine if any Reimbursement Amount is outstanding in the event
a Termination Auction occurs and shall take such action as is required to cause
the Servicer or the Seller to remit such Reimbursement Amount to the Trustee for
deposit into the Distribution Account prior to the Distribution Date following
the date of sale.
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.
Within five (5) Business Days prior to the respective Auction Date,
the Trustee shall deliver a bid notice for the Mortgage Loans and the REO
Properties to at least three institutions that are regular purchasers and/or
sellers in the secondary market of residential whole mortgage loans (other than
Bank of America, National Association or any Affiliate thereof). The bid notice
shall specify the Mortgage Loans and the REO Properties that are being sold, and
identify the Minimum Bid Price and the other information necessary for the
bidders to make bids. All bids must be submitted to the Trustee on a date
determined by the Trustee, which date shall be set forth in the bid notice. Only
cash bids may be accepted. With respect to the Mortgage Loans and related REO
Properties to be purchased, if one or more bids that exceed the Minimum Bid
Price are received, the price (the "Termination Price") for such Mortgage Loans
and related REO Property shall be equal to the highest price bid by a bidder,
and such bidder (the "Auction Winner") shall complete the purchase of such
Mortgage Loans and related REO Properties at the Termination Price before the
next Distribution Date for the Certificates relating to such auctioned Mortgage
Loans and REO Properties. If, however, no bid equals or exceeds the Minimum Bid
Price for the Mortgage Loans and related REO Properties, the Trustee will
continue to auction the Mortgage Loans and related REO Property every three
months until the Minimum Bid Price is received.
Notice of any termination of the Trust, specifying the applicable
date upon which the applicable Certificateholders may surrender their
Certificates to the Trustee for payment of the final distribution and for
cancellation, shall be given promptly by the Trustee by letter to the applicable
Certificateholders mailed not later than the 15th day of the month of such final
distribution specifying (1) the Distribution Date upon which final payment of
the Certificates will be made upon presentation and surrender of such
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.
Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to the Certificateholders of each Class, in the
order set forth in Sections 5.02 and 5.03 hereof, as applicable, on the
applicable Distribution Date, and in proportion to their respective Percentage
Interests, with respect to Certificateholders of the same Class, all cash on
hand in respect of the related REMIC (other than the amounts retained to meet
claims). An amount shall be distributed in respect of interest and principal, as
applicable, to the Uncertificated Lower-Tier Interests in the same manner as
principal and interest are distributed to the Uncertificated Lower-Tier
Interests and Uncertificated Lower-Tier Interests as provided in Section 5.09.
If 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 Distribution Account not
distributed in final distribution to such Certificateholders to continue to be
held by the Trustee in an Eligible Account for the benefit of the
Certificateholders and the Trustee shall give a second written notice to the
remaining Certificateholders to surrender their Certificates for cancellation
and receive a final distribution with respect thereto. If within one year after
the second notice all the 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 an Auction Winner exercises its purchase option as provided
in Section 10.01, the REMIC 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
either REMIC created hereunder to fail to qualify as a REMIC at any time that
any related Certificates are outstanding:
(i) within 90 days prior to the Final Distribution Date set forth in
the notice given by the Trustee under Section 10.01, the Trustee shall
sell all of the assets of the Trust Estate to the Auction Winner, for
cash; and
(ii) the notice given by the Trustee pursuant to Section 10.01 shall
provide that such notice constitutes adoption of a plan of complete
liquidation of the Upper Tier REMIC and the Lower Tier 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 ensure that such
date is specified in the final tax return of the REMIC.
(b) By their 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 or the
Trustee.
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 with the consent of the NIMS
Insurer 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 each REMIC created hereunder as a
REMIC at all times that any related Certificates are outstanding or to avoid or
minimize the risk of the imposition of any tax on either 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 Distribution 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 Class A Certificates, the Class
B Certificates and Class M Certificates as evidenced by a letter from each
Rating Agency rating such Certificates to such effect, (v) to provide for the
rights of the NIMS Insurer 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.
This Agreement may also be amended from time to time by the
Depositor, the Servicer and the Trustee, with the consent of the NIMS Insurer
(if the NIMS Insurer is affected by such amendment) and the Holders of
Certificates of each Class of Certificates which is affected by such amendment,
evidencing, as to each such Class of Certificates, Percentage Interests
aggregating not less than 66-2/3%, for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Holders of such Certificates;
provided, however, that no such amendment shall (A) reduce in any manner the
amount of, or delay the timing of, collections of payments on Mortgage Loans or
distributions which are required to be made on any Certificate without the
consent of the Holder of such Certificate or (B) reduce the aforesaid percentage
required to consent to any such amendment, without the consent of the Holders of
all Certificates then Outstanding.
Prior to the solicitation of consent of Certificateholders in
connection with any such amendment, the party seeking such amendment shall
furnish the Trustee and the NIMS Insurer with an Opinion of Counsel stating
whether such amendment would adversely affect the qualification of either REMIC
created hereunder as a REMIC and notice of the conclusion expressed in such
Opinion of Counsel shall be included with any such solicitation. An amendment
made with the consent of all Certificateholders and executed in accordance with
this Section 11.01 shall be permitted or authorized by this Agreement
notwithstanding that such Opinion of Counsel may conclude that such amendment
would adversely affect the qualification of either REMIC created hereunder as a
REMIC.
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, the NIMS Insurer 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; Counterparts. This Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Trustee and at the expense of the Trust on direction of Holders
of Certificates evidencing not less than 50% of all Voting Rights, but only upon
receipt of an Opinion of Counsel to the effect that such recordation materially
and beneficially affects the interests of Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 11.03 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust, or the obligations of the parties hereto, nor shall anything
herein set forth, or contained in the terms of the Certificates, be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
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.
With respect to any claim arising out of this Agreement, each party
irrevocably submits to the exclusive jurisdiction of the courts of the State of
New York and the United States District Court located in the Borough of
Manhattan in The City of New York, and each party irrevocably waives any
objection which it may have at any time to the laying of venue of any suit,
action or proceeding arising out of or relating hereto brought in any such
courts, irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in any inconvenient forum and further
irrevocably waives the right to object, with respect to such claim, suit, action
or proceeding brought in any such court, that such court does not have
jurisdiction over such party, provided that service of process has been made by
any lawful means.
Section 11.05 Notices. All demands, notices, instructions,
directions, requests and communications required or permitted to be delivered
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by certified mail, return receipt requested,
(provided, however, that notices to the Trustee may be delivered by facsimile
and shall be deemed effective upon receipt) to (a) in the case of the Depositor,
Banc of America Funding Corporation, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Senior Vice President, (b) in the case of GreenPoint,
GreenPoint Mortgage Funding, Inc., 000 Xxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx
00000, Attention: Xxxxx Xxxxx and General Counsel; (c) in the case of the
Trustee, Xxxxx Fargo Bank, N.A., X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000,
Attention: BAFC, Series 2005-C, and for overnight delivery purposes, Xxxxx Fargo
Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention:
BAFC, Series 2005-C, with a copy to Xxxxx Fargo Bank, N.A., Sixth and Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, 00000, Attention: BAFC, Series 2005-C, (d) in
the case of Moody's, Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attn: Residential Mortgage Monitoring Group, (e) in the
case of S&P, Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc.,
00 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attn: Residential Mortgage Surveillance
Manager and (f) in the case of the NIMS Insurer, such address furnished to the
parties hereto in writing by the NIMS Insurer; or, as to each party, at such
other address as shall be designated by such party in a written notice to each
other party; or, as to each party, at such other address as shall be designated
by such party in a written notice to each other party. Any notice required or
permitted to be mailed to a Certificateholder shall be given by first class
mail, postage prepaid, at the address of such Holder as shown in the Certificate
Register. Any notice to a Certificateholder so mailed within the time prescribed
in this Agreement shall be conclusively presumed to have been duly given,
whether or not the Certificateholder receives such notice.
Section 11.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 11.07 Certificates Nonassessable and Fully Paid. It is the
intention of the 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 three or more Certificateholders 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, 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. Nothing in this Agreement or
in the Certificates, expressed or implied, shall give to any Person, other than
the Certificateholders, the parties hereto and the NIMS Insurer and their
successors hereunder, any benefit or any legal or equitable right, remedy or
claim under this Agreement.
The NIMS Insurer shall be deemed a third-party beneficiary of this
Agreement to the same extent as if it were a party hereto, and shall have the
right to enforce the provisions of this Agreement directly against the parties
to this Agreement.
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 FUNDING
CORPORATION,
as Depositor
By:
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President
GREENPOINT MORTGAGE FUNDING, INC.,
as the Servicer
By:
-----------------------------------------
Name:
Title:
XXXXX FARGO BANK, N.A.,
as Trustee
By:
-----------------------------------------
Name:
Title:
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
)
On the 28th day of April, 2005, before me, a notary public in and
for the State of North Carolina, personally appeared Xxxxx Xxxxx, known to me
who, being by me duly sworn, did depose and say that he is a Senior Vice
President of Banc of America Funding Corporation, a Delaware corporation, one of
the parties that executed the foregoing instrument; and that he signed his name
thereto by order of the Board of Directors of such corporation.
---------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF CALIFORNIA )
) ss.:
COUNTY OF )
)
On the 28th day of April, 2005, before me, a notary public in and
for the State of California, personally appeared ___________, known to me who,
being by me duly sworn, did depose and say that she is a Vice President of
GreenPoint Mortgage Funding, Inc., a New York 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 MINNESOTA )
) ss.:
COUNTY OF )
)
On the 28th day of April, 2005, before me, a notary public in and
for the State of Minnesota, personally appeared Xxxxx Xxxxxx, known to me who,
being by me duly sworn, did depose and say that he is an Assistant Vice
President of Xxxxx Fargo Bank, N.A., a national banking association, one of the
parties that executed the foregoing instrument; and that he signed his name
thereto by order of the Board of Directors of such association.
---------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________.
EXHIBIT A-A-1
[FORM OF FACE OF CLASS A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-C
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") AND CERTAIN OTHER PROPERTY.
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 FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-C
Class A-1
evidencing an interest in a Trust consisting primarily of adjustable interest
rate mortgage loans (the "Mortgage Loans") secured by first liens on one- to
four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: April 1, 2005
First Distribution Date: May 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $295,302,000.00
Pass-Through Rate: Floating
CUSIP No.: 05946X UB 7
ISIN No.: US05946XUB71
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
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated April 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
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
or any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
For each Distribution Date occurring prior to and including the Auction
Date, interest will accrue on these Certificates at a per annum rate equal to
the lesser of (i) the sum of One-Month LIBOR and 0.24% and (ii) the Subgroup A
Cap. On each Distribution Date following the Auction Date, interest will accrue
on these Certificates at a per annum rate equal to the lesser of (i) the sum of
One-Month LIBOR and 0.48% and (ii) the Subgroup A Cap.
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 FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-C
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 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") AND CERTAIN OTHER PROPERTY.
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 FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-C
Class A-2
evidencing an interest in a Trust consisting primarily of adjustable interest
rate mortgage loans (the "Mortgage Loans") secured by first liens on one- to
four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: April 1, 2005
First Distribution Date: May 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $111,958,000.00
Pass-Through Rate: Floating
CUSIP No.: 05946X UC 5
ISIN No.: US05946XUC54
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
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated April 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
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
or any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
For each Distribution Date occurring prior to and including the Auction
Date, interest will accrue on these Certificates at a per annum rate equal to
the lesser of (i) the sum of One-Month LIBOR and 0.25% and (ii) the Subgroup B
Cap. On each Distribution Date following the Auction Date, interest will accrue
on these Certificates at a per annum rate equal to the lesser of (i) the sum of
One-Month LIBOR and 0.50% and (ii) the Subgroup B Cap.
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 FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-C
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, EACH COMPONENT OF THIS CERTIFICATE
REPRESENTS BENEFICIAL OWNERSHIP OF 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 PROPERTY.
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 SUBORDINATE TO THE CLASS A-1 AND CLASS A-2 CERTIFICATES IN
RESPECT OF CERTAIN LOSSES AS DESCRIBED IN THE POOLING AGREEMENT.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-C
Class A-3
evidencing an interest in a Trust consisting primarily of adjustable interest
rate mortgage loans (the "Mortgage Loans") secured by first liens on one- to
four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: April 1, 2005
First Distribution Date: May 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $45,252,000.00
Pass-Through Rate: Floating
CUSIP No.: 05946X UD 3
ISIN No.: US05946XUD38
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
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated April 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
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
or any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
For the purposes of determining distributions of interest and in reduction
of the Class Certificate Balance, the Class A-3 Certificates consist of two
components (each, a "Component" and individually, the "Class A-3A Component" and
the "Class A-3B Component"). The amount of interest which accrues on the Class
A-3 Certificates in any month will equal the sum of the interest which accrues
on the Components. The Components are not severable.
For each Distribution Date occurring prior to and including the Auction
Date, interest will accrue on the Class A-3A Component at a per annum rate equal
to the lesser of (i) the sum of One-Month LIBOR and 0.30% and (ii) the Subgroup
A Cap. On each Distribution Date following the Auction Date, interest will
accrue on the Class A-3A Component at a per annum rate equal to the lesser of
(i) the sum of One-Month LIBOR and 0.60% and (ii) the Subgroup A Cap. For each
Distribution Date occurring prior to and including the Auction Date, interest
will accrue on the Class A-3B Component at a per annum rate equal to the lesser
of (i) the sum of One-Month LIBOR and 0.30% and (ii) the Subgroup B Cap. On each
Distribution Date following the Auction Date, interest will accrue on the Class
A-3B Component at a per annum rate equal to the lesser of (i) the sum of
One-Month LIBOR and 0.60% and (ii) the Subgroup B Cap.
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-M-1
[FORM OF FACE OF CLASS M-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-C
Class M-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 REPRESENTS
BENEFICIAL OWNERSHIP OF 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 PROPERTY.
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 CLASS A CERTIFICATES
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-C
Class M-1
evidencing an interest in a Trust consisting primarily of adjustable interest
rate mortgage loans (the "Mortgage Loans") secured by first liens on one- to
four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: April 1, 2005
First Distribution Date: May 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $14,365,000.00
Pass-Through Rate: Floating
CUSIP No.: 05946X UE 1
ISIN No.: US05946XUE11
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
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated April 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
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
or any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
For each Distribution Date occurring prior to and including the Auction
Date, interest will accrue on these Certificates at a per annum rate equal to
the lesser of (i) the sum of One-Month LIBOR and 0.45% and (ii) the Pool Cap. On
each Distribution Date following the Auction Date, interest will accrue on these
Certificates at a per annum rate equal to the lesser of (i) the sum of One-Month
LIBOR and 0.675% and (ii) the Pool Cap.
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-M-2
[FORM OF FACE OF CLASS M-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-C
Class M-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
BENEFICIAL OWNERSHIP OF 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 PROPERTY.
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 CLASS A CERTIFICATES
AND THE CLASS M-1 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-C
Class M-2
evidencing an interest in a Trust consisting primarily of adjustable interest
rate mortgage loans (the "Mortgage Loans") secured by first liens on one- to
four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: April 1, 2005
First Distribution Date: May 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $10,898,000.00
Pass-Through Rate: Floating
CUSIP No.: 05946X UF 8
ISIN No.: US05946XUF85
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
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated April 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
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
or any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
For each Distribution Date occurring prior to and including the Auction
Date, interest will accrue on these Certificates at a per annum rate equal to
the lesser of (i) the sum of One-Month LIBOR and 0.65% and (ii) the Pool Cap. On
each Distribution Date following the Auction Date, interest will accrue on these
Certificates at a per annum rate equal to the lesser of (i) the sum of One-Month
LIBOR and 0.975% and (ii) the Pool Cap.
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-B-1
[FORM OF FACE OF CLASS B-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-C
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 REPRESENTS
BENEFICIAL OWNERSHIP OF 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 PROPERTY.
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 CLASS A
CERTIFICATES, THE CLASS M-1 CERTIFICATES AND THE CLASS M-2 CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-C
Class B-1
evidencing an interest in a Trust consisting primarily of adjustable interest
rate mortgage loans (the "Mortgage Loans") secured by first liens on one- to
four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: April 1, 2005
First Distribution Date: May 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $7,926,000.00
Pass-Through Rate: Floating
CUSIP No.: 05946X UG 6
ISIN No.: US05946XUG68
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
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated April 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
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
or any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
For each Distribution Date occurring prior to and including the Auction
Date, interest will accrue on these Certificates at a per annum rate equal to
the lesser of (i) the sum of One-Month LIBOR and 1.20% and (ii) the Pool Cap. On
each Distribution Date following the Auction Date, interest will accrue on these
Certificates at a per annum rate equal to the lesser of (i) the sum of One-Month
LIBOR and 1.80% and (ii) the Pool Cap.
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-B-2
[FORM OF FACE OF CLASS B-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-C
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 REPRESENTS
BENEFICIAL OWNERSHIP OF 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 PROPERTY.
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 CLASS A
CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES AND THE
CLASS B-1 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-C
Class B-2
evidencing an interest in a Trust consisting primarily of adjustable interest
rate mortgage loans (the "Mortgage Loans") secured by first liens on one- to
four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: April 1, 2005
First Distribution Date: May 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $2,477,000.00
Pass-Through Rate: Floating
CUSIP No.: 05946X UH 4
ISIN No.: US05946XUH42
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
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated April 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
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
or any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
For each Distribution Date occurring prior to and including the Auction
Date, interest will accrue on these Certificates at a per annum rate equal to
the lesser of (i) the sum of One-Month LIBOR and 1.90% and (ii) the Pool Cap. On
each Distribution Date following the Auction Date, interest will accrue on these
Certificates at a per annum rate equal to the lesser of (i) the sum of One-Month
LIBOR and 2.85% and (ii) the Pool Cap.
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-B-3
[FORM OF FACE OF CLASS B-3 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-C
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 REPRESENTS
BENEFICIAL OWNERSHIP OF 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 PROPERTY.
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 CLASS A
CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS
B-1 CERTIFICATES AND THE CLASS B-2 CERTIFICATES AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-C
Class B-3
evidencing an interest in a Trust consisting primarily of adjustable interest
rate mortgage loans (the "Mortgage Loans") secured by first liens on one- to
four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: April 1, 2005
First Distribution Date: May 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $3,220,000.00
Pass-Through Rate: Floating
CUSIP No.: 05946X UJ 0
ISIN No.: US05946XUJ08
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
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated April 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
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
or any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
For each Distribution Date occurring prior to and including the Auction
Date, interest will accrue on these Certificates at a per annum rate equal to
the lesser of (i) the sum of One-Month LIBOR and 1.90% and (ii) the Pool Cap. On
each Distribution Date following the Auction Date, interest will accrue on these
Certificates at a per annum rate equal to the lesser of (i) the sum of One-Month
LIBOR and 2.85% and (ii) the Pool Cap.
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-CE
[FORM OF FACE OF CLASS CE CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-C
Class CE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
DIRECT OR INDIRECT BENEFICIAL INTEREST IN 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 PROPERTY.
THIS CLASS CE CERTIFICATE IS SUBORDINATE TO THE OFFERED CERTIFICATES TO THE
EXTENT DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CLASS CE CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH TIME AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED, SECTION 4975 OF THE CODE OR ANY MATERIALLY SIMILAR PROVISIONS
OF APPLICABLE FEDERAL, STATE OR LOCAL LAW WILL BE REGISTERED.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-C
Class CE
evidencing an interest in a Trust consisting primarily of adjustable interest
rate mortgage loans (the "Mortgage Loans") secured by first liens on one- to
four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: April 1, 2005
First Distribution Date: May 20, 2005
Percentage Interest: 100%
Initial Overcollateralization
Amount: $3,963,118.59
CUSIP No.: 05946X UL 5
ISIN No.: US05946XUL53
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest set forth above in that certain beneficial ownership interest evidenced
by all the Class CE Certificates in the Trust Fund created pursuant to a Pooling
and Servicing Agreement in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Banc of America Funding
Corporation (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement, dated April 28, 2005 (the "Pooling and Servicing
Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc., 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.
The Class CE Certificates are limited in right of payment to certain
collections and recoveries relating to the Mortgage Loans and the Yield
Maintenance Agreements, all as more specifically set forth herein and in the
Pooling and Servicing Agreement.
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Servicer or the Trustee or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
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 Seller, 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-P
[FORM OF FACE OF CLASS P CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-C
Class P
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED, SECTION 4975 OF THE CODE OR ANY MATERIALLY SIMILAR PROVISIONS
OF APPLICABLE FEDERAL, STATE OR LOCAL LAW WILL BE REGISTERED.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-C
Class P
evidencing an interest in a Trust consisting primarily of adjustable interest
rate mortgage loans (the "Mortgage Loans") secured by first liens on one- to
four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: April 1, 2005
First Distribution Date: May 20, 2005
Percentage Interest: 100%
CUSIP No.: 05946X UM 3
ISIN No.: US05946XUM37
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest set forth above in that certain beneficial ownership interest evidenced
by all the Class P Certificates in the Trust Fund created pursuant to a Pooling
and Servicing Agreement in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Banc of America Funding
Corporation (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement, dated April 28, 2005 (the "Pooling and Servicing
Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc., 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.
The Class P Certificates are limited in right of payment to Prepayment
Premiums received on the Mortgage Loans, as more specifically set forth herein
and in the Pooling and Servicing Agreement.
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Servicer or the Trustee or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
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 Seller, 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-R
[FORM OF FACE OF CLASS R CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-C
Class R
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN TWO "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS 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.
THIS CLASS 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 CLASS R CERTIFICATE IN VIOLATION OF SUCH
RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN THE
PURPORTED TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-C
Class 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 adjustable interest rate mortgage loans (the "Mortgage Loans")
secured by first liens on one- to four-family residential properties deposited
by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: April 1, 2005
First Distribution Date: May 20, 2005
Percentage Interest: 100%
CUSIP No.: 05946X UK 7
ISIN No.: US05946XUK70
THIS CERTIFIES THAT _________ is the registered owner of 100% Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated April 28, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
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 Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Servicer or the Trustee or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
The Class R Certificates are limited in right of payment to certain
collections and recoveries relating to the Mortgage Loans, as more specifically
set forth herein and in the Pooling and Servicing Agreement
Any distribution of the proceeds of any remaining assets of the
Distribution Account will be made only upon presentment and surrender of this
Class R Certificate at the Corporate Trust Office.
Each Person who has or who acquires this Class 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 R
Certificate are expressly subject to the following provisions: (i) each Person
holding or acquiring this Class 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 R Certificate unless such ownership interest is a pro
rata undivided interest; (iii) in connection with any proposed transfer of this
Class 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 Class R
Certificate to such proposed transferee shall be effected; (v) this Class R
Certificate may not be purchased by or transferred to any Person that is not a
U.S. Person, unless (A) such Person holds this Class R 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 Class R Certificate will not be disregarded for federal
income tax purposes; (vi) any attempted or purported transfer of this Class 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 R
Certificate in violation of such restrictions, then the Trustee 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 C
[FORM OF REVERSE OF ALL CERTIFICATES]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-C
This Certificate is one of a duly authorized issue of Certificates
designated as Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, of the Series specified on the face hereof (collectively, the
"Certificates"), and representing a beneficial ownership interest in the Trust
created by the Pooling and Servicing Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution 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 20th 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 preceding the month of such Distribution Date or
the Business Day immediately preceding such Distribution Date, as set forth in
the Pooling and Servicing Agreement.
On each Distribution Date, the Trustee shall distribute out of the
Distribution Account to each Certificateholder of record on the related Record
Date (other than with respect to the final distribution) (a) by check mailed to
such Certificateholder entitled to receive a distribution on such Distribution
Date at the address appearing in the Certificate Register, or (b) upon written
request by the Holder of a Certificate (other than a Residual Certificate), by
wire transfer or by such other means of payment as such Certificateholder and
the 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 Sections 5.02 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, the
Trustee and the NIMS Insurer (if any) 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, 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
of the Mortgage Loans is less than 10% of the aggregate unpaid principal balance
of such Mortgage Loans as of the Cut-off Date (the "Auction Date"), the Trustee
will initiate an auction process to sell such Mortgage Loans and the related REO
Property. The Trustee shall conduct the auction in accordance with Section 10.01
of the Pooling and Servicing Agreement. In the event that the Mortgage Loans and
the related REO Property are not sold pursuant to an auction, 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.
I (We) further direct the Trustee 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-1
LOAN SUBGROUP A MORTGAGE LOAN SCHEDULE
[Intentionally Omitted]
EXHIBIT D-2
LOAN SUBGROUP B MORTGAGE LOAN SCHEDULE
[Intentionally Omitted]
EXHIBIT E
REQUEST FOR RELEASE OF DOCUMENTS
[date]
To: Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: The Pooling and Servicing Agreement, dated April 28, 2005, among Banc of
America Funding Corporation, as depositor (the "Depositor"), GreenPoint
Mortgage Funding, Inc., as servicer ("GreenPoint"), and Xxxxx Fargo Bank,
N.A., as trustee (the "Trustee") and the Custodial Agreement, dated April
28, 2005, among the Depositor, GreenPoint, the Trustee and Wachovia Bank,
National Association, as custodian (the "Custodian")
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 applicable
Servicer)
Issuer:__________________________________
Address:_________________________________
_________________________________________
Date:____________________________________
Custodian
---------
Wachovia Bank, National Association
Please acknowledge the execution of the above request by your signature and date
below:
___________________________________ ________________
Signature Date
Documents returned to Custodian:
___________________________________ ________________
Custodian Date
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 April 28, 2005, among Banc of America Funding Corporation, as Depositor,
GreenPoint Mortgage Funding, Inc., 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
Attention: Corporate Trust Services - BAFC 2005-C
Re: Banc of America Funding Corporation, Mortgage
Pass-Through Certificates, Series 2005-C, Class ___,
having an initial aggregate Certificate Balance as of
April 28, 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 April 28, 2005, among Banc of America Funding Corporation, as
Depositor, GreenPoint Mortgage Funding, Inc., as servicer (the "Servicer"), and
Xxxxx Fargo Bank, N.A., as trustee (the "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
Attention: Corporate Trust Services - BAFC 2005-C
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2005-C, Class ___, having an initial aggregate
Certificate Balance as of April 28, 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 April 28, 2005, among Banc of America Funding
Corporation, as Depositor, GreenPoint Mortgage Funding, Inc., as servicer, and
Xxxxx Fargo Bank, N.A., as trustee (the "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.
___ 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:_______________________________________
-------------
(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.
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
By:_________________________________________
Date:_______________________________________
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
Attention: Corporate Trust Services - BAFC 2005-C
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2005-C, Class ___, having an initial aggregate
Certificate Balance as of April 28, 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
April 28, 2005, among Banc of America Funding Corporation, as Depositor,
GreenPoint Mortgage Funding, Inc., as servicer (the "Servicer"), and Xxxxx Fargo
Bank, N.A., as trustee (the "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 Seller, their affiliates
or both.
3. The Transferee understands that it may not sell or otherwise transfer
the Transferred Certificates, any security issued in exchange therefor or in
lieu thereof or any interest in the foregoing except in compliance with the
provisions of Section 6.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A
TRANSACTION EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT
AND IN ACCORDANCE WITH THE PROVISIONS OF THE POOLING AND SERVICING
AGREEMENT REFERENCED HEREIN.
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, 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 ERISA-RESTRICTED CERTIFICATES
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services - BAFC 2005-C
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2005-C, Class ___, having an initial aggregate
Certificate Balance as of April 28, 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
April 28, 2005, among Banc of America Funding Corporation, as Depositor,
GreenPoint Mortgage Funding, Inc., as servicer, and Xxxxx Fargo Bank, N.A., as
trustee (the "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 that 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
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 Funding Corporation
Mortgage Pass-Through Certificates,
Series 2005-C
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 R Certificate (the "Residual
Certificate") issued pursuant to the Pooling and Servicing Agreement, dated
April 28, 2005, (the "Agreement"), relating to the above-referenced Series, by
and among Banc of America Funding Corporation, as depositor (the "Depositor"),
GreenPoint Mortgage Funding, Inc., as servicer (the "Servicer"), and Xxxxx Fargo
Bank, N.A., as trustee (the "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
LIST OF RECORDATION STATES
Maryland
Florida
EXHIBIT K
[FORM OF INITIAL CERTIFICATION OF THE CUSTODIAN]
Banc of America Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: BAFC 2005-C
Re: The Pooling and Servicing Agreement, dated April 28, 2005, among
Banc of America Funding Corporation, as depositor (the "Depositor"),
GreenPoint Mortgage Funding, Inc., as servicer ("GreenPoint"), and
Xxxxx Fargo Bank, N.A., as trustee (the "Trustee") and the Custodial
Agreement, dated April 28, 2005, among the Depositor, GreenPoint,
the Trustee and Wachovia Bank, National Association, as custodian
(the "Custodian")
--------------------------------------------------------------------
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 Custodian, hereby certifies that, except as may be 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 Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement and the Custodial Agreement in connection with
this Initial Certification. The Custodian makes no representations as to: (i)
the validity, legality, sufficiency, enforceability, recordability or
genuineness of any of the documents contained in each Mortgage File or any of
the Mortgage Loans identified in the Mortgage Loan Schedule or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
Wachovia Bank, National Association
as Custodian
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
EXHIBIT L
FORM OF FINAL CERTIFICATION OF THE CUSTODIAN
[__________ __, ____]
Banc of America Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: BAFC 2005-C
Re: The Pooling and Servicing Agreement, dated April 28, 2005, among
Banc of America Funding Corporation, as depositor (the "Depositor"),
GreenPoint Mortgage Funding, Inc., as servicer ("GreenPoint"), and
Xxxxx Fargo Bank, N.A., as trustee (the "Trustee") and the Custodial
Agreement, dated April 28, 2005, among the Depositor, GreenPoint,
the Trustee and Wachovia Bank, National Association, as custodian
(the "Custodian")
--------------------------------------------------------------------
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 Custodian, hereby certifies that, as to each Mortgage Loan
listed in the Mortgage Loan Schedule, except as may be specified in any list of
exceptions attached hereto, such Mortgage File contains all of the items
required to be delivered pursuant to Section 2.01(b) of the Pooling and
Servicing Agreement.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement and the Custodial Agreement in connection with
this Final Certification. The Custodian makes no representations as to: (i) the
validity, legality, sufficiency, enforceability, recordability or genuineness of
any of the documents contained in each Mortgage File or any of the Mortgage
Loans identified in the Mortgage Loan Schedule or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
Wachovia Bank, National Association
as Custodian
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
EXHIBIT M
Form of Xxxxxxxx-Xxxxx Certification
Banc of America Funding Corporation
Mortgage Pass-Through Certificates, Series 2005-C
I, [________], a [_____________] of Banc of America Funding Corporation,
certify that:
1. I have reviewed this annual report on Form 10-K, and all reports on Form
8-K containing distribution or servicing reports filed in respect of
periods included in the year covered by this annual report of the Banc of
America Funding 2005-C 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 April 28, 2005 (the "Pooling Agreement"), among
Banc of America Funding Corporation, as Depositor, GreenPoint Mortgage
Funding, Inc., as Servicer, and Xxxxx Fargo Bank, N.A., as Trustee, for
inclusion in these reports is included in these reports;
4. Based on my knowledge and upon the annual compliance statements included
in the report and required to be delivered by the Servicer to the Trustee
in accordance with the terms of the Pooling Agreement, and except as
disclosed in the reports, the Servicer has fulfilled its obligations under
the Pooling Agreement; and
5. The reports disclose all significant deficiencies relating to the
Servicer's compliance with the minimum servicing standards based upon the
reports provided by independent public accountants after conducting
reviews in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or similar procedure as set forth in the Pooling
Agreement that are included in these reports.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: GreenPoint
Mortgage Funding, Inc. and Xxxxx Fargo Bank, N.A.
By:______________________________________
Name:
Title:
EXHIBIT N
FORM OF CERTIFICATION TO BE PROVIDED BY
THE TRUSTEE TO THE DEPOSITOR
Banc of America Funding Corporation
Mortgage Pass-Through Certificates, Series 2005-C
The Trustee hereby certifies to the Depositor and its officers, directors
and affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
1. I have reviewed this annual report on Form 10-K for the calendar year
[___] and all reports on Form 8-K containing distribution or servicing reports
filed in respect of periods included in the year covered by this annual report
of the Banc of America Funding 2005-C Trust;
2. Based on my knowledge, the distribution information in these reports on
Form 8-K filed in respect of periods included in the year covered by this 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 April 28, 2005, among Banc of America Funding
Corporation, as depositor, GreenPoint Mortgage Funding, Inc., 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 O
FORM OF YIELD MAINTENANCE AGREEMENTS
BANK OF AMERICA, N.A.
TO: Banc of America Funding Corporation 2005-C Trust
c/o Wells Fargo Bank, X.X.
Xxxxx Fargo Bank, N.A. as Trustee on behalf of Banc of America Funding
Corporation 2005-C Trust
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
ATTN: Xxxxx Xxxxxxx
TEL: 000-000-0000
FAX: 000-000-0000
CC: Xxxx Xxxxxxxx/ Xxxxx Xxxxxxx
000 X Xxxxx Xx
Xxxxxxxxx, XX 00000
000-000-0000
FROM: Bank of America, National Association
000 Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
DATE: 28 April 2005
Our Reference Numbers: [ ]
Internal Tracking Numbers: [ ]
Dear Sir/Madam,
The purpose of this letter agreement is to confirm the terms and
conditions of the transaction entered into between Banc of America Funding
Corporation 2005-C Trust and Bank of America, N.A., a national banking
association organized under the laws of the United States of America (each a
"party" and together "the parties") on the Trade Date specified below (the
"Transaction"). This letter agreement constitutes a "Confirmation" as referred
to in the ISDA Master Agreement specified in paragraph 1 below. In this
Confirmation, "Party A" means Bank of America, N.A., and "Party B" means Banc of
America Funding Corporation 2005-C Trust.
The definitions and provisions contained in the 2000 ISDA Definitions, as
published by the International Swaps and Derivatives Association, Inc. (the
"Definitions"), are incorporated into this Confirmation. In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation
will govern.
Other capitalized terms used herein (but not otherwise defined) shall have
the meaning specified in that certain Pooling and Servicing Agreement, dated
April 28, 2005 (the "Pooling and Servicing Agreement"), among Banc of America
Funding Corporation, GreenPoint Mortgage Funding, Inc., as a servicer, and Xxxxx
Fargo Bank, N.A., as trustee.
1. This Confirmation evidences a complete binding agreement between the parties
as to the terms of the Transaction to which this Confirmation relates. In
addition, the parties agree that for the purposes of this Transaction, this
Confirmation will supplement, form a part of, and be subject to an agreement in
the form of the 1992 ISDA Master Agreement (Multicurrency-Cross Border) as if
the parties had executed an agreement in such form (but without any Schedule
except for the elections noted below) on the Trade Date of the Transaction (such
agreement, the "Form Master Agreement"). In the event of any inconsistency
between the provisions of the Form Master Agreement and this Confirmation, this
Confirmation will prevail for the purpose of this Transaction.
Each party represents to the other party and will be deemed to represent
to the other party on the date on which it enters into this Transaction that
(absent a written agreement between the parties that expressly imposes
affirmative obligations to the contrary for that Transaction):
(a) Non-Reliance. Each party has made its own independent decisions to
enter into this Transaction and as to whether this Transaction is appropriate or
proper for it based upon its own judgment and upon advice from such advisors as
it has deemed necessary. It is not relying on any communication (written or
oral) of the other party as investment advice or as a recommendation to enter
into this Transaction; it being understood that information and explanations
related to the terms and conditions of this Transaction shall not be considered
investment advice or a recommendation to enter into this Transaction. Further,
such party has not received from the other party any assurance or guarantee as
to the expected results of this Transaction.
(b) Evaluation and Understanding. It is capable of evaluating and
understanding (on its own behalf or through independent professional advice),
and understands and accepts, the terms, conditions and risks of this
Transaction. It is also capable of assuming, and assumes, the financial and
other risks of this Transaction.
(c) Status of Parties. The other party is not acting as an agent,
fiduciary or advisor for it in respect of this Transaction.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: As per the attached Schedule A
Trade Date: 27 April 2005
Effective Date: 20 May 2005
Termination Date: [____], subject to adjustment in accordance
with the Following Business Day Convention.
Fixed Amount:
Fixed Rate Payer: Party B
Fixed Rate Payer 28 April 2005
Payment Date:
Fixed Amount: USD [______]
Floating Amount:
Floating Rate Payer: Party A
Strike Rate: As per the attached Schedule A
Ceiling Rate: [____] per cent
Floating Rate Payer Early Payments shall be applicable - 2
Payment Dates: Business Days prior to each Floating
Rate Payer Period End Date
Floating Rate Payer The 20th of each Month, commencing on
Period End Dates: 20th June 2005 and ending on the
Termination Date, subject to adjustment
in accordance with the Following
Business Day Convention
Floating Amount: The product of (a) the Notional Amount,
(b) the actual numbers of days in the
Calculation Period / 360 and (c) the
Settlement Spread which shall be
calculated in accordance with the
following formula:
If USD-LIBOR-BBA is greater than the Strike
Rate for the applicable Calculation Period,
then Settlement Spread = (USD-LIBOR-BBA -
applicable Strike Rate) provided, however, that
if USD-LIBOR-BBA for any Calculation Period is
greater than the Ceiling Rate then the
USD-LIBOR-BBA for such Calculation Period shall
be deemed to be the Ceiling Rate.
If 1 Month USD-LIBOR-BBA is less than or equal
to the Strike Rate for the applicable
Calculation Period, then Settlement Spread =
Zero.
The Calculation Agent shall notify the Floating
Amount Payer of the Floating Amount as soon as
practicable after making its determinations.
Floating Rate for TO BE SET
initial Calculation
Period:
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: 1 Month
Spread: None
Floating Rate Day Count Actual/360
Fraction:
Averaging: Inapplicable
Reset Dates: First day of each Calculation Period
Business Days: New York
Calculation Agent: Party A
3. Form Master Agreement.
(a) "Specified Entity" means, in relation to Party A, for the purpose of
Section 5(a)(v), Section 5(a)(vi), Section 5(a)(vii) and Section 5(b)(iv): Not
Applicable.
(b) "Specified Entity" means, in relation to Party B, for the purpose of
Section 5(a)(v), Section 5(a)(vi), Section 5(a)(vii) and Section 5(b)(iv): Not
Applicable.
(c) "Specified Transaction" will have the meaning specified in Section 14
of the Form Master Agreement.
(d) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) of the
Form Master Agreement will not apply to Party A or to Party B.
(e) The "Automatic Early Termination" provision of Section 6(a) of the
Form Master Agreement will not apply to Party A or to Party B.
(f) The Form Master Agreement will be governed by, and construed in
accordance with, the laws of the State of New York without reference to its
conflict of laws provisions (except for Sections 5-1401 and 5-1402 of the New
York General Obligations Law).
(g) The phrase "Termination Currency" means United States Dollars.
(h) For the purpose of Section 6(e) of the Form Master Agreement, Market
Quotation and Second Method will apply.
4. Recording of Conversations.
Each party to this Transaction acknowledges and agrees to the tape (and/or
other electronic) recording of conversations between the parties to this
Transaction whether by one or other or both of the parties or their agents, and
that any such recordings may be submitted in evidence in any Proceedings
relating to the Form Master Agreement and/or this Transaction.
5. Credit Support Document.
In relation to Party A: Not Applicable.
In relation to Party B: Not Applicable.
6. Credit Support Provider.
In relation to Party A: Not Applicable.
In relation to Party B: Not Applicable.
7. Account Details.
Account for payments to Party A:
[Intentionally Omitted]
Account for payments to Party B:
[Intentionally Omitted]
8. Offices.
The Office of Party A for this Transaction is: Charlotte, North Carolina
Please send notices to
fax no. 000-000-0000.
The Office of Party B for this Transaction is: Xxxxx Fargo Bank, N.A. as
Trustee on behalf of Banc
of America Funding
Corporation 2005-C Trust
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Corporate Trust
Securities BAFC 2005-C
9. Additional Provisions.
(a) Fully-Paid Transactions. Notwithstanding the terms of Sections 5 and 6
of the Form Master Agreement, if at any time and so long as one of the parties
to the Form Master Agreement ("X") shall have satisfied in full all its payment
and delivery obligations under Section 2(a)(i) of the Form Master Agreement and
shall at the time have no future payment or delivery obligations, whether
absolute or contingent, under such Section, then unless the other party ("Y") is
required pursuant to appropriate proceedings to return to X or otherwise returns
to X (upon demand of X, or otherwise) any portion of any such payment or
delivery: (i) the occurrence of an event described in Section 5(a)(i) of the
Form Master Agreement with respect to X shall not constitute an Event of Default
or a Potential Event of Default with respect to X as the Defaulting Party; and
(ii) Y shall be entitled to designate an Early Termination Date (a) pursuant to
Section 10 below and/or (b) pursuant to Section 6 of the Form Master Agreement
only as a result of the occurrence of a Termination Event set forth in (i)
either Section 5(b)(i) or 5(b)(ii) or 5(b)(v) of the Form Master Agreement with
respect to Y as the Affected Party or (ii) Section 5(b)(iii) of the Form Master
Agreement with respect to Y as the Burdened Party.
(b) Downgrade of Party A. If a Ratings Event (as defined below) shall
occur and be continuing with respect to Party A, then Party A shall (A) within 5
Business Days of such Ratings Event, give notice to Party B of the occurrence of
such Ratings Event, and (B) use reasonable efforts to transfer (at its own cost)
Party A's rights and obligations hereunder to another party, subject to
satisfaction of the Rating Agency Condition (as defined below). Unless such a
transfer by Party A has occurred within 20 Business Days after the occurrence of
a Ratings Event, Party A shall post Eligible Collateral (as designated in the
approved Credit Support Annex), to secure Party B's exposure or potential
exposure to Party A, and such Eligible Collateral shall be provided in
accordance with a Credit Support Annex to be attached hereto and made a part
hereof within 10 Business Days. The Eligible Collateral to be posted and the
Credit Support Annex to be executed and delivered shall be subject to the Rating
Agency Condition. Notwithstanding the addition of the Credit Support Annex and
the posting of Eligible Collateral, Party A shall continue to use reasonable
efforts to transfer its rights and obligations hereunder to an acceptable third
party; provided, however, that Party A's obligations to find a transferee and to
post Eligible Collateral under such Credit Support Annex shall remain in effect
only for so long as a Ratings Event is continuing with respect to Party A. For
the purpose hereof, a "Ratings Event" shall occur with respect to Party A if the
long-term and short-term senior unsecured deposit ratings of Party A cease to be
at least A and A-1 by Standard & Poor's Ratings Service ("S&P") and at least A
and F1 by Fitch Ratings ("Fitch"), to the extent such obligations are rated by
S&P and Fitch. Party A acknowledges and agrees that if at any time during the
term of this Transaction the long-term senior unsecured deposit rating by S&P of
Party A is below "BBB-", then from the date that is 30 Business Days from the
occurrence of such event, Party A shall transfer (at its own cost) its rights
and obligations hereunder to another party, subject to satisfaction of the
Rating Agency Condition. "Rating Agency Condition" means, with respect to any
action taken or to be taken, a condition that is satisfied when S&P and Fitch
have confirmed in writing that such action would not result in the downgrade,
qualification (if applicable) or withdrawal of the rating then assigned by such
Rating Agency to the applicable class of Certificates. The failure by Party A to
post Eligible Collateral in accordance herewith or to transfer its rights and
obligations hereunder shall constitute an Additional Termination Event for which
Party A shall be the sole Affected Party.
10. Additional Termination Event.
It shall be an Additional Termination Event if any amendment and/or supplement
to any document that pertains to the Form Master Agreement and/or this
Transaction is made without the prior written consent of Party A (such consent
not to be unreasonably withheld), if such amendment and/or supplement would: (i)
adversely affect any of Party A's rights or obligations hereunder and/or under
the Form Master Agreement; or (ii) modify the obligations of, or impair the
ability of, Party B to fully perform any of Party B's obligations hereunder
and/or under the Form Master Agreement. In connection with such Additional
Termination Event, Party B shall be the sole Affected Party.
11. Waiver of Right to Trial by Jury.
EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY
WITH RESPECT TO ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
TRANSACTION.
12. Eligible Contract Participant.
Each party represents to the other party that it is an "eligible contract
participant" as defined in Section 1a(12) of the U.S. Commodity Exchange Act, as
amended.
13. Notice by Facsimile Transmission.
Section 12(a) of the Form Master Agreement is hereby amended by deleting
the parenthetical "(except that a notice or other communication under Section 5
or 6 may not be given by facsimile transmission or electronic messaging
system)."
14. Representations.
Xxxxx Fargo Bank, N.A., acting on behalf of Party B represents that: (a)
it is duly organized and validly existing as a national banking association
under the laws of the jurisdiction of its organization/formation; (b) it is duly
authorized to enter into this Transaction (including the Form Master Agreement)
and to perform its obligations hereunder (and thereunder); (c) the Transaction
and the performance of its obligations hereunder (and under the Form Master
Agreement) do not violate any material obligation of such Party; (d) as of the
date hereof, all conditions precedent to the issuance of the Certificates have
been satisfied or waived; (e) each of the Pooling and Servicing Agreement and
the other transaction documents related thereto (the "Transaction Documents") to
which it is a party has been duly authorized, executed and delivered by it; (f)
assuming the due authorization, execution and delivery thereof by the other
parties thereto, each of the Pooling and Servicing Agreement and the other
Transaction Documents to which Party B is a party constitutes the legal, valid
and binding obligations of Party B, enforceable against Party B in accordance
with the terms thereof, subject to applicable bankruptcy, insolvency and similar
laws or legal principles affecting creditors' rights generally; (g) the Pooling
and Servicing Agreement and the other Transaction Documents to which Party B is
a party are in full force and effect on the date hereof and there have been no
amendments or waivers or modifications of any of the terms thereof since the
original execution and delivery of the Pooling and Servicing Agreement and the
other Transaction Documents to which Party B is a party, except such as may have
been delivered to Party A and to Party B; (h) to the best of its knowledge, no
event of default (or event which would, with the passage of time or the giving
of notice, or both, constitute an event of default) has occurred under any of
the Transaction Documents to which Party B is a party; and (i) the person
executing this Confirmation is duly authorized to execute and deliver it on
behalf of Party B.
15. Multibranch Party.
For purpose of Section 10(c) of the Form Master Agreement: (a) Party A is
a Multibranch Party, and may act through its Charlotte, North Carolina, Chicago,
Illinois, San Francisco, California, New York, New York, Boston, Massachusetts
or London, England Office; and (b) Party B is not a Multibranch Party.
16. Other Provisions.
(a) Addresses for notices. As set forth on page 1 hereof and, with respect
to Party A, the fax no. set forth in Section 8 hereof.
(b) For the purpose of Section 13(c) of the Form Master Agreement: (i)
Party A appoints as its Process Agent, not applicable; and (ii) Party B appoints
as its Process Agent, not applicable.
(c) Section 12(a)(ii) of the Form Master Agreement is deleted in its
entirety.
(d) Party A may transfer or assign its rights and obligations hereunder to
any entity so long as the Rating Agency Condition is satisfied.
(e) USA PATRIOT Act Notice. Party A hereby notifies Party B that pursuant
to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed
into law October 26, 2001)) (the "Act"), it is required to obtain, verify and
record information that identifies Party B, which information includes the name
and address of Party B and other information that will allow Party A to identify
Party B in accordance with the Act.
(f) It is expressly understood and agreed by the parties hereto that
insofar as this Confirmation is executed by the Trustee (i) this Confirmation is
executed and delivered by Xxxxx Fargo Bank, N.A., not in its individual capacity
but solely as Trustee under the Pooling and Servicing Agreement in the exercise
of the powers and authority conferred and vested in it thereunder, (ii) each of
the representations, undertakings and agreements herein made on behalf of the
trust formed under the Pooling and Servicing Agreement is made and intended not
as personal representations, undertakings and agreements of the Trustee but is
made and intended solely for the purpose of binding only Banc of America Funding
Corporation 2005-C Trust, and (iii) under no circumstances shall Xxxxx Fargo
Bank, N.A., in its individual capacity be personally liable for the payment of
any indebtedness or expenses or be personally liable for the breach or failure
of any obligation, representation, warranty or covenant made or undertaken by it
on behalf of Banc of America Funding Corporation 2005-C Trust under this
Confirmation. Notwithstanding the foregoing (or anything to the contrary
herein), Xxxxx Fargo Bank, N.A. shall be liable for its own fraud, negligence,
willful misconduct and/or bad faith.
(g) The Events of Default specified under Sections 5(a)(ii) - 5(a)(vi) of
the Form Master Agreement will not apply to Party B.
(h) With respect to Party B only, the provisions of Section 5(a)(vii)
clause 2 of the Form Master Agreement will not be applicable as an Event of
Default.
(i) Without affecting the provisions of the Form Master Agreement
requiring the calculation of certain net payment amounts, as a result of an
Event of Default or Additional Termination Event or otherwise, all payments
under the Form Master Agreement will be made without setoff.
(j) Party A agrees that it will not, prior to the date that is one year
and one day from the Trade Date, acquiesce, petition or otherwise invoke or
cause Party B to invoke the process of any court or governmental authority for
the purpose of commencing or sustaining a case against Party B under any federal
or state bankruptcy, insolvency or similar law or for the purpose of appointing
a receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official for Party B or any substantial part of the property of Party B,
or for the purpose of ordering the winding up or liquidation of the affairs of
Party B. Nothing herein (nor in the Form Master Agreement) shall prevent Party A
from participating in any such proceeding once commenced.
(k) Section 9(b) of the Form Master Agreement is hereby amended by adding
the following at the end of such Section: ", and unless the Rating Agency
Condition is satisfied, unless such amendment clarifies any term or provision,
corrects any inconsistency, cures any ambiguity, or corrects any typographical
error."
(l) Before any amendment and/or supplement is made to any document that
pertains to the Form Master Agreement and/or any Transaction thereunder, Party B
must first obtain the prior written consent of Party A (such consent not to be
unreasonably withheld) if such amendment and/or supplement would: (a) adversely
affect any of Party A's rights or obligations under the Form Master Agreement;
or (b) modify the obligations of, or impact the ability of, Party B to fully
perform any of Party B's obligations under the Form Master Agreement.
[remainder of the page intentionally left blank]
Please confirm that the foregoing correctly sets forth the terms and conditions
of our agreement by returning within three (3) Business Days via telecopier an
executed copy of this Confirmation to the attention of Global Derivative
Operations (_______). Failure to respond within such period shall not affect the
validity or enforceability of this Transaction, and shall be deemed to be an
affirmation of the terms and conditions contained herein, absent manifest error.
Yours sincerely,
Bank of America, N.A.
By:
-----------------------------------------
Name:
Title:
Confirmed as of the date above:
Banc of America Funding Corporation 2005-C Trust
By: Xxxxx Fargo Bank, N.A. acting as Trustee on behalf of Banc of America
Funding Corporation 2005-C Trust
By:
-----------------------------------------
Name:
Title:
SCHEDULE A
Our Reference Numbers:
Start Date End Date Notional Amount(USD) Strike Rate
---------- -------- -------------------- -----------
