Contract
EXECUTION COPY
Exhibit
10.1
between
BANC OF
AMERICA FUNDING CORPORATION,
as
Depositor,
and
BANK OF
AMERICA, NATIONAL ASSOCIATION,
as
Servicer,
Dated May
30, 2008
_______________________
Mortgage
Pass-Through Certificates
Series
2008-1
TABLE OF
CONTENTS
Page
|
ARTICLE I DEFINITIONS
|
2
|
|
|
Section 1.01.
|
Defined Terms
|
2
|
|
ARTICLE II ADMINISTRATION AND SERVICING OF
MORTGAGE LOANS
|
4
|
|
|
Section 2.01.
|
Servicer to Service Mortgage
Loans
|
4
|
|
Section
2.02.
|
Subservicing; Enforcement of the Obligations of
Servicers
|
5
|
|
Section
2.03.
|
Fidelity Bond; Errors and Omissions
Insurance
|
7
|
|
Section
2.04.
|
Access to Certain
Documentation
|
7
|
|
Section
2.05.
|
Maintenance of Primary Mortgage Insurance Policy;
Claims; Collections of BPP Mortgage Loan Payments
|
7
|
|
Section
2.06.
|
Master Servicer to Act as
Servicer
|
8
|
|
Section
2.07.
|
Collection of Mortgage Loan Payments and BANA
Custodial Account
|
9
|
|
Section
2.08.
|
Collection of Taxes, Assessments and Similar
Items; Escrow Account
|
11
|
|
Section
2.09.
|
Access to Certain Documentation and Information
Regarding the Mortgage Loans
|
12
|
|
Section
2.10.
|
Permitted Withdrawals from the BANA Custodial
Account
|
13
|
|
Section
2.11.
|
Maintenance of Hazard
Insurance
|
14
|
|
Section
2.12.
|
Enforcement of Due-On-Sale Clauses; Assumption
Agreements
|
15
|
|
Section
2.13.
|
Realization Upon Defaulted Mortgage Loans; REO
Property
|
16
|
|
Section
2.14.
|
Trustee to Cooperate; Release of Mortgage
Files
|
18
|
|
Section
2.15.
|
Documents, Records and Funds in Possession of the
Servicer to be Held for the Trustee
|
19
|
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Section
2.16.
|
Servicing Compensation
|
20
|
|
Section
2.17.
|
Annual Statement as to
Compliance
|
20
|
|
Section
2.18.
|
Annual Independent Public Accountants’ Servicing
Statement; Financial Statements; Provision of Additional
Information
|
21
|
|
Section
2.19.
|
Advances
|
22
|
|
Section
2.20.
|
Modifications, Waivers, Amendments and
Consents
|
22
|
|
Section
2.21.
|
Reports to the Securities and Exchange
Commission
|
24
|
|
Section
2.22.
|
Lost Instruments Affidavit and
Indemnity
|
25
|
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ARTICLE III SERVICER’S CERTIFICATE;
REMITTANCES
|
25
|
|
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Section
3.01.
|
Servicer’s Certificate
|
25
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Section
3.02.
|
Remittances
|
26
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ARTICLE IV THE SERVICER
|
26
|
|
|
Section
4.01.
|
Liabilities of the Servicer
|
26
|
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|
Section
4.02.
|
Merger or Consolidation of the
Servicer
|
26
|
|
Section
4.03.
|
Limitation on Liability of the
Servicer
|
27
|
|
Section
4.04.
|
Servicer Not to Resign; Transfers of
Servicing
|
27
|
|
Section
4.05.
|
Representations, Warranties and Covenants of the
Servicer
|
28
|
|
Section
4.06.
|
REMIC Related Covenants
|
29
|
|
ARTICLE V DEFAULT
|
30
|
|
|
Section
5.01.
|
Events of Default
|
30
|
|
Section
5.02.
|
Master Servicer to Act; Appointment of
Successor
|
31
|
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ARTICLE VI TERMINATION
|
32
|
|
|
Section
6.01.
|
Termination upon Purchase or Liquidation of All
Mortgage Loans
|
32
|
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ARTICLE VII MISCELLANEOUS
PROVISIONS
|
33
|
|
|
Section
7.01.
|
Amendment
|
33
|
|
Section
7.02.
|
Governing Law
|
33
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Section
7.03.
|
Notices
|
34
|
|
Section
7.04.
|
Severability of Provisions
|
34
|
|
Section
7.05.
|
Assignment by the Depositor
|
34
|
|
Section
7.06.
|
Trustee Capacity
|
34
|
|
Section
7.07.
|
Insolvency
|
35
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EXHIBITS
|
||
|
Exhibit
A
|
Form
of Certification of Establishment of Account
|
A-1
|
|
Exhibit
B
|
Form
of Servicer’s Certification
|
B-1
|
|
Exhibit
C-1
|
Form
of Delinquency Report
|
C-1-1
|
|
Exhibit
C-2
|
Form
of Monthly Remittance Advice
|
C-1-2
|
|
Exhibit
C-3
|
Realized
Loss Report
|
C-1-2
|
|
Exhibit
D
|
Contents
of Servicing File
|
D-1
|
|
Exhibit
E
|
Servicing
Criteria to the Assessment of Compliance
|
E-1
|
|
Schedule
I
|
BANA
Mortgage Loan Schedule
|
I-1
|
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THIS
SERVICING AGREEMENT, dated May 30, 2008 (the “Agreement”), is
hereby executed by and between BANC OF AMERICA FUNDING CORPORATION, as depositor
(together with its permitted successors and assigns, the “Depositor”) and BANK
OF AMERICA, NATIONAL ASSOCIATION, as Servicer (together with its permitted
successors and assigns, the “Servicer”).
W I T N E S S E T H T H A T:
WHEREAS,
pursuant to the Mortgage Loan Purchase Agreement, dated May 30, 2008, by and
between the Depositor and the Servicer, the Servicer shall convey the BANA
Mortgage Loans on a servicing-retained basis to the Depositor, which in turn
shall convey the BANA Mortgage Loans to the Trustee under a pooling and
servicing agreement dated May 30, 2008 (the “Pooling and Servicing
Agreement”), among U.S. Bank National Association, as trustee (the “Trustee”), the
Depositor and LaSalle Bank National Association, as master servicer (the “Master Servicer”) and
as securities administrator (the “Securities
Administrator”);
WHEREAS,
the Depositor desires that the Servicer service the BANA Mortgage Loans pursuant
to this Agreement, and the Servicer agrees to do so;
WHEREAS,
the Depositor and the Servicer acknowledge and agree that the Depositor will
assign all of its rights hereunder to the Trustee, and the Trustee then shall
succeed to all rights of the Depositor under this Agreement;
WHEREAS,
the Master Servicer shall be obligated under the Pooling and Servicing
Agreement, among other things, to supervise the servicing of the BANA Mortgage
Loans on behalf of the Trustee, and shall have the right, under certain
circumstances, to terminate the rights and obligations of the Servicer under
this Servicing Agreement upon the occurrence and continuance of an Event of
Default as provided herein;
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth and
for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Depositor and the Servicer hereby agree as
follows:
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ARTICLE
I
DEFINITIONS
Section
1.01.
Defined
Terms.
BANA Custodial
Account: The separate Eligible Account or Accounts created and
maintained by BANA pursuant to Section 2.07(b).
BANA Mortgage
Loans: The mortgage loans serviced by BANA and identified as
such on the Mortgage Loan Schedule and which are also identified on the BANA
Mortgage Loan Schedule attached hereto.
BANA Mortgage Loan
Schedule: The mortgage loan schedule attached hereto as Schedule I containing
the same fields as are set forth on the Mortgage Loan Schedule.
Capitalization Reimbursement
Amount: As defined in Section 2.20(c).
Determination Date:
As to any Distribution Date, the 16th day of
the month of the related Distribution Date or, if such 16th day is
not a Business Day, the Business Day immediately preceding such
day.
Exchange Act: The
Securities Exchange Act of 1934, as amended.
Monthly
Advance: With respect to the BANA Mortgage Loans, the payment
required to be made by the Servicer with respect to any Distribution Date
pursuant to Section 2.19, the amount of any such payment being equal to the
aggregate of Monthly Payments (net of the Servicing Fee) on the BANA Mortgage
Loans (including any REO Property) serviced by the 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 the Servicer has determined would constitute a Nonrecoverable Advance if
advanced.
Prime Rate:
The prime rate announced to be in effect from time to time, as published as the
average rate in The Wall Street Journal.
Regulation AB:
Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506 - 1,631 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time to
time.
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Remittance Date: As
to any Distribution Date, by 2:00 p.m. Eastern time on the 18th
calendar day of each month, or if such day is not a Business Day, the Business
Day immediately preceding such day.
Securities Act: The
Securities Act of 1933, as amended.
Servicing Advance:
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 2.13 and any enforcement or judicial
proceedings, including foreclosures, (iii) the management and liquidation
of any REO Property, (iv) compliance with the obligations under
Section 2.11 and (v) reasonable costs of any third party credit counseling
provided on behalf of a Mortgagor.
Servicing Criteria:
As defined in Section 2.18 of this Agreement.
Servicing Fee: With
respect to each BANA 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 BANA
Mortgage Loan and the Stated Principal Balance of such BANA Mortgage Loan,
subject to reduction as provided in Section 2.16. 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 BANA 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 2.10) of related Monthly Payments collected by
the Servicer, or as otherwise provided under Section 2.10.
Servicing Fee Rate:
With respect to each BANA Mortgage Loan, a per annum rate as described in the
BANA Mortgage Loan Schedule.
Servicing File: The
items pertaining to a particular BANA Mortgage Loan referred to in Exhibit D hereto, and
any additional documents required to be added to the Servicing File pursuant to
this Agreement.
Servicing Officer:
Any officer of the Servicer involved in, or responsible for, the administration
and servicing of the BANA Mortgage Loans whose name appears on a list of
servicing officers furnished to the Master Servicer by the Servicer, as such
list may from time to time be amended.
Servicing Transfer
Costs: All reasonable costs and expenses incurred by the Master Servicer
in connection with the transfer of servicing from the Servicer, including,
without
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limitation,
any costs or expenses associated with the complete transfer of all servicing
data and the completion, correction or manipulation of such servicing data as
may be required by the Master Servicer to correct any errors or insufficiencies
in the servicing data or otherwise to enable the Master Servicer to service the
BANA Mortgage Loans properly and effectively.
Subcontractor: Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing of Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans under
the direction or authority of the Servicer.
Subservicer: Any
Person that services Mortgage Loans on behalf of the Servicer or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Servicer under this Agreement or any
reconstitution agreement that are identified in Item 1122(d) of Regulation
AB.
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 the servicing and/or administration of
certain BANA Mortgage Loans as provided in Section 2.02.
Except as
otherwise specified herein or as the context may otherwise require, capitalized
terms used but not otherwise defined herein are defined in the Pooling and
Servicing Agreement.
ARTICLE
II
ADMINISTRATION
AND SERVICING
OF
MORTGAGE LOANS
Section
2.01.
Servicer to Service Mortgage
Loans.
For and
on behalf of the Certificateholders, the Servicer shall service and administer
the BANA Mortgage Loans in accordance with the terms of this Agreement,
Customary Servicing Procedures, applicable law and the terms of the related
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 2.02, 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 Master Servicer, the Certificateholders, the Securities
Administrator and the Trustee, customary consents or waivers and other
instruments and documents, (b) to consent, with respect to the BANA
Mortgage Loans, 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
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Proceeds
and other Liquidation Proceeds relating to the BANA Mortgage Loans, and
(d) to effectuate foreclosure or other conversion of the ownership of the
Mortgaged Property securing any BANA Mortgage Loan. 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 BANA Mortgage Loan and shall not make or
permit any modification, waiver or amendment of any term of any BANA Mortgage
Loan, except as provided pursuant to Section 2.20. Without
limiting the generality of the foregoing, the Servicer, in its own name or in
the name of any Subservicer or the Trustee, is hereby authorized and empowered
by the Depositor and the Trustee, when the Servicer or any Subservicer, as the
case may be, believes it appropriate in its reasonable judgment, to execute and
deliver, on behalf of the Trustee, the Depositor, the Certificateholders or any
of them, any and all instruments and agreements of satisfaction, cancellation,
default, assumption, modification, discharge, partial or full release, and all
other comparable instruments and agreements, with respect to the BANA Mortgage
Loans, and with respect to the related Mortgaged Properties held for the benefit
of the Certificateholders. To the extent that the Servicer is not permitted to
execute and deliver such documents pursuant to the preceding sentence, the
Servicer shall prepare and deliver to the Depositor and/or the Trustee such
documents requiring execution and delivery by any or all of them as are
necessary or appropriate to enable the Servicer to service and administer the
BANA Mortgage Loans. Upon receipt of such documents, the Depositor
and/or the Trustee, upon the direction of the Servicer, shall promptly execute
such documents and deliver them to the Servicer. Alternatively, upon
the request of the Servicer, the Trustee shall execute and deliver to the
Servicer any additional powers of attorney or other documents prepared by the
Servicer that are reasonably necessary or appropriate to enable the Servicer to
carry out its servicing and administrative duties under this
Agreement.
In
accordance with the standards of the preceding paragraph, the Servicer shall
advance or cause to be advanced funds as necessary for the purpose of effecting
the payment of taxes and assessments on the Mortgaged Properties relating to the
BANA Mortgage Loans, which Servicing Advances shall be reimbursable in the first
instance from related collections from the Mortgagors pursuant to
Section 2.08, and further as provided in Section 2.10.
The
relationship of the Servicer (and of any successor to the Servicer as servicer
under this Agreement) to the Trustee, the Master Servicer and the Securities
Administrator under this Agreement is intended by the parties to be that of an
independent contractor and not that of a joint venturer, partner or
agent.
Section
2.02.
Subservicing; Enforcement of
the Obligations of Servicers.
(a) The
Servicer may arrange for the subservicing of any BANA Mortgage Loan 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 BANA 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
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shall
remain obligated and liable to the Depositor, the Master Servicer, the
Securities Administrator, the Trustee and the Certificateholders for the
servicing and administration of the BANA Mortgage Loans 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 BANA Mortgage Loans. All actions of each Subservicer performed
pursuant to the related Subservicing Agreement shall be performed as agent of
the Servicer with the same force and effect as if performed directly by the
Servicer.
(b) For
purposes of this Agreement, the Servicer shall be deemed to have received any
collections, recoveries or payments with respect to the BANA Mortgage Loans 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, the Securities Administrator, the Master Servicer 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 BANA Mortgage
Loan. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Subservicing Agreements and the pursuit of
other appropriate remedies, shall be in such form and carried out to such an
extent and at such time as the Servicer, in its good faith business judgment,
would require were it the owner of the related BANA 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 BANA 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 Master Servicer, if the Master Servicer has assumed
the duties of the Servicer, or any successor Servicer, at the Master Servicer’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 5.02.
(e) Any
Subservicing Agreement, and any other transactions or services relating to the
BANA Mortgage Loans involving a Subservicer, shall be deemed to be between the
Servicer and such Subservicer alone, and the Trustee, the Securities
Administrator, the Master Servicer 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 2.01. The Servicer shall be solely liable for all fees owed by it
to any Subservicer, irrespective of whether the Servicer’s compensation pursuant
to this Agreement is sufficient to pay such fees.
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Section
2.03.
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 BANA Mortgage
Loans. 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 BANA
Mortgage Loan without having obtained payment in full of the indebtedness
secured thereby. No provision of this Section 2.03 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 Xxxxxx
Xxx in the Xxxxxx Mae Servicing Guide or by Xxxxxxx Mac in the Xxxxxxx Xxx
Xxxxxxx’ & Servicers’ Guide, as amended or restated from time to time, or in
an amount as may be permitted to the Servicer by express waiver of Xxxxxx Xxx or
Xxxxxxx Mac.
Section
2.04.
Access to Certain
Documentation.
The
Servicer shall provide to the OTS and the FDIC and to comparable regulatory
authorities supervising Holders of Certificates and the examiners and
supervisory agents of the OTS, the FDIC and such other authorities, access to
the documentation required by applicable regulations of the OTS and the FDIC
with respect to the BANA 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 2.04 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 2.04 as a result of
such obligation shall not constitute a breach of this
Section 2.04.
Section
2.05.
Maintenance of Primary
Mortgage Insurance Policy; Claims; Collections of BPP Mortgage Loan
Payments.
With
respect to each BANA 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 that was originated
with a Primary Mortgage Insurance Policy, 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 BANA
Mortgage Loan in excess of a percentage in conformity with Xxxxxx Mae
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 BANA 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
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an
insurer acceptable to Xxxxxx Xxx, the Servicer shall notify the Master Servicer
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 2.05 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 2.12, the
Servicer shall promptly notify the insurer under the related 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 Trust, 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 BANA
Mortgage Loan. Pursuant to Section 2.08(a), any amounts
collected by the Servicer under any Primary Mortgage Insurance Policy shall be
deposited in the Escrow Account, subject to withdrawal pursuant to
Section 2.08(b).
The
Servicer will comply with all provisions of applicable state and federal law
relating to the cancellation of, or collection of premiums with respect to,
Primary Mortgage Insurance Policies, including, but not limited to, the
provisions of the Homeowners Protection Act of 1998, and all regulations
promulgated thereunder, as amended from time to time.
The
Servicer shall take all actions necessary to collect, on behalf of the Trust,
any BPP Mortgage Loan Payments required to be made to the Trust pursuant to the
Mortgage Loan Purchase Agreement.
Section
2.06.
Master Servicer 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 Master Servicer 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 Master Servicer shall not be (a) liable for losses of the
Servicer pursuant to Section 2.11 or any acts or omissions of the
predecessor Servicer hereunder, (b) obligated to make Advances if it is
prohibited from doing so by applicable law or (c) deemed to have made any
representations and warranties of the Servicer
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hereunder). Any
such assumption shall be subject to Sections 4.02 and 5.02. If the
Servicer shall for any reason no longer be the Servicer (including by reason of
any Event of Default), the Master Servicer 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 Master Servicer 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 2.02 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 a Servicer hereunder shall, upon request of the
Master Servicer, but at the expense of such Servicer, deliver to the assuming
party all documents and records relating to each Subservicing Agreement or
substitute servicing agreement and the BANA Mortgage Loans then being serviced
thereunder and an accounting of amounts collected or held by it and otherwise
use its best efforts to effect the orderly and efficient transfer of such
substitute Subservicing Agreement to the assuming party. The Master
Servicer shall be entitled to be reimbursed from such Servicer (or the Trust if
such Servicer is unable to fulfill its obligations hereunder) for all Servicing
Transfer Costs.
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Section
2.07.
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Collection of Mortgage
Loan Payments and BANA Custodial
Account.
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(a) Continuously
from the date hereof until the principal and interest on all BANA 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 BANA Mortgage Loans
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 BANA
Mortgage Loans 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 penalties or penalty interest in connection
with the prepayment of a BANA Mortgage Loan 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 BANA Mortgage Loan past the date on which
the final payment is due on the latest maturing BANA Mortgage Loan as of the
Cut-off Date. In the event of any such arrangement, the Servicer
shall make Monthly Advances on the related BANA Mortgage Loan in accordance with
the provisions of Section 2.19 during the scheduled period 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.
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(b) The
Servicer shall establish and maintain the BANA Custodial Account. The
Servicer shall deposit or cause to be deposited into the BANA Custodial Account
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 it in respect of the BANA Mortgage Loans subsequent
to the Cut-off Date (other than in respect of principal and interest due on the
BANA Mortgage Loans on or before the Cut-off Date) and the following amounts
required to be deposited hereunder with respect to the BANA Mortgage Loans it
services:
(i) all
payments on account of principal of such BANA Mortgage Loans, including
Principal Prepayments and any prepayment charges;
(ii) all
payments on account of interest on such BANA Mortgage Loans, net of the
Servicing Fee;
(iii) (A) all
Insurance Proceeds and Liquidation Proceeds, other than Insurance Proceeds to be
(1) applied to the restoration or repair of the Mortgaged Property,
(2) released to the Mortgagor in accordance with Customary Servicing
Procedures or (3) required to be deposited to the Escrow Account pursuant
to Section 2.08(a), and other than any Excess Proceeds and (B) any
Insurance Proceeds released from the Escrow Account pursuant to
Section 2.08(b)(iv);
(iv) any
amount required to be deposited by the Servicer pursuant to Section 2.07(d)
in connection with any losses on Permitted Investments with respect to the BANA
Custodial Account;
(v) any
amounts required to be deposited by the Servicer pursuant to
Section 2.13;
(vi) all
Repurchase Prices, all Substitute Adjustment Amounts, all Reimbursement Amounts
and all Recoveries to the extent received by the Servicer;
(vii) Monthly
Advances made by the Servicer pursuant to Section 2.19 and any Compensating
Interest; and
(viii) any other
amounts required to be deposited hereunder.
The
foregoing requirements for deposits to the BANA Custodial Account by the
Servicer shall be exclusive. If the Servicer shall deposit in the
BANA Custodial Account any amount not required to be deposited, it may at any
time withdraw or direct the institution maintaining the BANA Custodial Account
to withdraw such amount from the BANA Custodial Account, any provision herein to
the contrary notwithstanding. The BANA Custodial Account may contain
funds that belong to one or more trust funds created for mortgage pass-through
certificates of other series and may contain other funds respecting payments on
mortgage loans belonging to the Servicer or serviced by the Servicer on behalf
of others; provided, however, that such commingling of funds shall not be
permitted at any time during which (i) Fitch’s senior long-term unsecured debt
rating of Bank of America, National Association is below “A” or
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(ii) S&P’s
senior short-term unsecured debt rating of BANA is below “A-2” (or, if no
short-term rating is available, the long-term rating is below
“BBB+”). In the event that S&P’s senior short-term unsecured debt
rating of BANA falls below “A-2” (or, if no short-term rating is available, the
long-term rating falls below “BBB+”), the Commingled Account will be moved
within 30 days to a depository with a senior short-term unsecured debt rating of
at least “A-2” (or, if no short-term rating is available, a long-term rating of
at least “BBB+”) by S&P. Notwithstanding such commingling of
funds, the Servicer shall keep records that accurately reflect the funds on
deposit in the BANA Custodial Account that have been identified by it as being
attributable to the BANA Mortgage Loans. The Servicer shall maintain
adequate records with respect to all withdrawals made pursuant to this
Section 2.07. All funds required to be deposited in the BANA
Custodial Account shall be held in trust for the Certificateholders until
withdrawn in accordance with Section 2.10.
(c) The
institution at which the BANA Custodial Account is maintained may invest the
funds therein as directed in writing by the Servicer in Permitted Investments,
which shall mature not later than 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). All such Permitted
Investments shall be made in the name of the Trustee, for the benefit of the
Certificateholders. All BANA 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. The amount of any losses
realized in the BANA Custodial Account incurred in respect of any such
investments shall promptly be deposited by the Servicer in the BANA Custodial
Account.
(d) The
Servicer shall give notice to the Master Servicer of any proposed change of the
location of the BANA Custodial Account maintained by it not later than 30 days
and not more than 45 days prior to any change thereof. The creation
of the BANA Custodial Account shall be evidenced by a certification
substantially in the form of Exhibit A
hereto. A copy of such certification shall be furnished to the Master
Servicer.
Section
2.08.
Collection of Taxes,
Assessments and Similar Items; Escrow Account.
(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 BANA Mortgage Loan which constitute Escrow Payments in trust separate
and apart from any of its own funds and general assets and for such purpose
shall establish and maintain one or more escrow accounts (collectively, the
“Escrow
Account”), titled “Bank of America, National Association, in trust for
registered holders of Banc of America Funding Corporation Mortgage Pass-Through
Certificates, Series 2008-1 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 Xxxxxx Xxx or
Xxxxxxx Mac 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 BANA 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
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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 Account 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 BANA Mortgage Loan for any Servicing Advance made by the Servicer
pursuant to Section 2.08(c) with respect to such BANA Mortgage Loan,
(iii) to refund to any Mortgagor any sums determined to be overages,
(iv) for transfer to the BANA Custodial Account upon default of a Mortgagor
or in accordance with the terms of the related BANA 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 6.01. Any Escrow Account shall not be a
part of the Trust Estate.
(c) With
respect to each BANA Mortgage Loan, the Servicer shall maintain accurate records
reflecting the status of taxes, assessments and other charges which are or may
become a lien upon the Mortgaged Property and the status of Primary 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.
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Section
2.09.
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Access to Certain
Documentation and Information Regarding the Mortgage
Loans.
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The
Servicer shall afford the Master Servicer, the Securities Administrator and the
Trustee reasonable access to all records and documentation regarding the BANA
Mortgage Loans serviced by it and all accounts, insurance information and other
matters relating to this
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Agreement,
such access being afforded without charge, but only upon reasonable request and
during normal business hours at the office designated by the
Servicer.
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Section
2.10.
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Permitted Withdrawals
from the BANA Custodial
Account.
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The
Servicer may from time to time make withdrawals from the BANA 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 2.16;
(ii)
to
reimburse itself for unreimbursed Advances (including Capitalization
Reimbursement Amounts) made by it, such right of reimbursement pursuant to this
clause (ii) being limited to amounts received on the BANA Mortgage Loans
(including amounts received in respect of BPP Mortgage Loan Payments for such
BANA Mortgage Loans) in respect of which any such Advance was made or
Capitalization Reimbursement Amount was created;
(iii)
to
reimburse itself for any Nonrecoverable Advance previously made;
(iv)
to
reimburse itself for Insured Expenses from the Insurance Proceeds;
(v)
to pay to
the purchaser, with respect to each BANA Mortgage Loan or REO Property that has
been purchased pursuant to the Pooling and Servicing Agreement, 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 Section 4.03;
(vii) to
withdraw any amount deposited in the BANA Custodial Account and not required to
be deposited therein;
(viii) on or
prior to the Remittance Date, to withdraw an amount equal to the portion of the
Pool Distribution Amount relating to the BANA Mortgage Loans and any other
amounts due to the Master Servicer under this Agreement for such Distribution
Date, to the extent on deposit, and remit such amount in immediately available
funds to the Master Servicer for deposit in the Master Servicer Custodial
Account;
(ix)
on or
prior to the Remittance Date, to withdraw all amounts deposited into the BANA
Custodial Account pursuant to Section 2.07(b)(viii) for such Distribution Date
and remit such amounts in immediately available funds to the Master Servicer for
deposit into the Master Servicer Custodial Account;
(x)
to clear
and terminate the BANA Custodial Account upon termination of this Agreement
pursuant to Section 6.01; and
(xi)
to
reimburse itself for any unreimbursed Capitalization Reimbursement Amounts
solely from collections on account of principal on the BANA Mortgage
Loans.
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The
Servicer shall keep and maintain separate accounting, on a BANA Mortgage Loan by
BANA Mortgage Loan basis, for the purpose of justifying any withdrawal from the
BANA Custodial Account pursuant to clauses (i), (ii), (iv) and (v)
above. Prior to making any withdrawal from the BANA Custodial Account
pursuant to clause (iii) above, the Servicer shall deliver to the Master
Servicer 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 BANA 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 it to the Master Servicer Custodial 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 Master Servicer
for the account of the Master Servicer 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.
Section
2.11.
Maintenance of Hazard
Insurance.
The
Servicer shall cause to be maintained for each BANA 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 BANA 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 Xxxxxx Xxx or Xxxxxxx Mac. The Servicer
shall also maintain on REO Property serviced by it, 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 BANA Mortgage Loan, or to be released to
the Mortgagor in accordance with Customary Servicing Procedures) shall be
deposited in the BANA Custodial Account, subject to withdrawal pursuant to
Section 2.10. 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.
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The
hazard insurance policies for each BANA Mortgage Loan secured by a unit in a
condominium development or planned unit development shall be maintained with
respect to such BANA Mortgage Loan and the related development in a manner which
is consistent with Xxxxxx Mae requirements.
Notwithstanding
the foregoing, the Servicer may maintain a blanket policy insuring against
hazard losses on all of the Mortgaged Properties relating to the BANA Mortgage
Loans in lieu of maintaining the required hazard insurance policies for each
BANA 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 BANA Mortgage Loans without co-insurance, and
(D) otherwise comply with the requirements of this
Section 2.11. 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 2.11 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 BANA Custodial Account the difference, if any,
between the amount that would have been payable under a separate policy
complying with this Section 2.11 and the amount paid under such blanket
policy.
Section
2.12.
Enforcement of Due-On-Sale
Clauses; Assumption Agreements.
(a) Except as
otherwise provided in this Section 2.12, 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 2.12(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 BANA
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 2.12(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
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Servicer
shall not be deemed to be in default under this Section 2.12 by reason of
any transfer or assumption which it 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 2.12(a), in any case in which a Mortgaged Property has been
conveyed to a Person by a Mortgagor, and such Person is to enter into an
assumption agreement or modification agreement or supplement to the Mortgage
Note or Mortgage or if an instrument of release is required releasing the
Mortgagor from liability on the BANA Mortgage Loan, the Servicer shall prepare
and execute the assumption agreement with the Person to whom the Mortgaged
Property is to be conveyed and such modification agreement or supplement to the
Mortgage Note or Mortgage or other instruments as are reasonable or necessary to
carry out the terms of the Mortgage Note or Mortgage or otherwise to comply with
any applicable laws regarding assumptions or the transfer of the Mortgaged
Property to such Person. In connection with any such assumption, no
material term of the Mortgage Note may be changed. In addition, the
substitute Mortgagor and the Mortgaged Property must be acceptable to the
Servicer in accordance with its underwriting standards as then in
effect. Together with each such substitution, assumption or other
agreement or instrument, the Servicer shall execute an Officer’s Certificate
signed by a Servicing Officer stating that the requirements of this subsection
have been met. The Servicer shall notify the Master Servicer and the
Trustee that any such substitution or assumption agreement has been completed by
forwarding to the Master Servicer, who shall forward to the Trustee (or at the
direction of the Trustee, the Custodian) a copy of the Officer’s Certificate
described in the previous sentence and the original of such substitution or
assumption agreement, which in the case of the original shall be added to the
related Mortgage File and shall, for all purposes, be considered a part of such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof. Any fee collected by the Servicer for
entering into an assumption or substitution of liability agreement may be
retained by it as additional servicing compensation.
Section
2.13.
Realization Upon Defaulted
Mortgage Loans; REO Property.
The
Servicer shall use reasonable efforts to foreclose upon or otherwise comparably
convert the ownership of Mortgaged Properties securing such of the BANA 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, a
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 BANA 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 BANA Mortgage Loan (respecting which
it shall have priority for purposes of withdrawals from the BANA Custodial
Account). Any such expenditures shall constitute Servicing Advances
for purposes of this Agreement.
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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 it 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 (subject to the conditions in the
following paragraph of this Section 2.13), the Servicer may rent the same, or
any part thereof, as it 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 Master
Servicer a statement with respect to each REO Property serviced by it 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 Securities Administrator 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 BANA Custodial Account no later than the close of
business on each Determination Date. The Servicer shall perform, with
respect to the BANA 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 BANA
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 Master Servicer, the Securities
Administrator, on behalf of the Trustee, and the Trustee shall have been
supplied by the Servicer with an Opinion of Counsel to the effect that the
holding by the Trust of such Mortgaged Property subsequent to the REO
Disposition Period will not result in the imposition of taxes on “prohibited
transactions” (as defined in Section 860F of the Code) on any REMIC or
cause any REMIC Estate to fail to qualify as a separate REMIC at any time that
any Certificates are outstanding, or (B) the Master Servicer, on behalf of
the Trustee (at the Servicer’s expense), or the Servicer shall have applied for,
prior to the expiration of the REO Disposition Period, an extension of the REO
Disposition Period in the manner contemplated by Section 856(e)(3) of the
Code. If such an Opinion of Counsel is provided or such an exemption
is obtained, the Trust may continue to hold such Mortgaged Property (subject to
any conditions contained in such Opinion of Counsel) for the applicable
period. Notwithstanding any other provision of this Agreement, no
Mortgaged Property acquired by the Trust shall be rented (or allowed to continue
to be rented) or otherwise used for the production of income by or on behalf of
the Trust in such a manner or pursuant to any terms that would (i) cause
such Mortgaged Property to fail to qualify as “foreclosure property” within the
meaning of Section 860G(a)(8) of the Code or (ii) subject any REMIC to
the imposition of any
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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 Master Servicer
and the Securities Administrator any Mortgaged Property relating to a BANA
Mortgage Loan held by the Trust for 30 months for which no plans to dispose of
such Mortgaged Property by the Servicer have been made. After
delivery of such identification, the Servicer shall proceed to dispose of any
such Mortgaged Property by holding a commercially reasonable auction for such
property.
The
income earned from the management of any REO Properties, net of reimbursement to
the Servicer for expenses incurred (including any property or other taxes) in
connection with such management and net of unreimbursed Servicing Fees,
Capitalization Reimbursement Amounts, Monthly Advances and Servicing Advances,
shall be applied to the payment of principal of and interest on the related
defaulted BANA Mortgage Loans (solely for the purposes of allocating principal
and interest, interest shall be treated as accruing as though such BANA 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 BANA 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 BANA
Mortgage Loan for such calendar month, such excess shall be considered to be a
partial prepayment of principal of the related BANA Mortgage Loan.
The
proceeds from any liquidation of a BANA 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 Monthly Advances and unreimbursed Capitalization
Reimbursement Amounts and to reimburse the BANA Custodial Account for any
Nonrecoverable Advances (or portions thereof) that were previously withdrawn by
the Servicer pursuant to Section 2.10(iii) that related to such BANA
Mortgage Loan; third, to accrued and unpaid interest (to the extent no Monthly
Advance has been made for such amount or any such Monthly Advance has been
reimbursed) on the BANA Mortgage Loan or related REO Property, at the Mortgage
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 BANA 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 2.16.
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Section
2.14.
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Trustee to Cooperate;
Release of Mortgage Files.
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Upon the
payment in full of any BANA 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 or the Master Servicer (only if the Master Servicer
is acting as Servicer pursuant to Section 2.06 hereof) 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
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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 or the Master
Servicer). Upon receipt of such request, the Trustee or the
Custodian, as applicable, shall within seven Business Days release the related
Mortgage File to the Servicer. The Trustee shall deliver to the
Servicer the Mortgage Note with written evidence of cancellation
thereon. If the Mortgage has been recorded in the name of MERS or its
designee, the Servicer shall take all necessary action to reflect the release of
the Mortgage on the records of MERS. Expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be chargeable
to the related Mortgagor. From time to time and as shall be
appropriate for the servicing or foreclosure of any BANA 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 BANA Mortgage Loan is liquidated and the proceeds
thereof are deposited in the BANA Custodial Account, in which case the Servicer
shall deliver to the Trustee or the Custodian, as applicable, a Request for
Release, signed by a Servicing Officer.
Upon
prepayment in full of any BANA Mortgage Loan or the receipt of notice that funds
for such purpose have been placed in escrow, the Servicer shall give an
instrument of satisfaction (or Assignment of Mortgage without recourse)
regarding the Mortgaged Property relating to such BANA 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.
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Section
2.15.
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Documents, Records and
Funds in Possession of the Servicer to be Held for the
Trustee.
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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 BANA Mortgage Loan serviced by it coming into the possession of the
Servicer from time to time and shall account fully to the Trustee for any funds
received by the Servicer or which otherwise are collected by the Servicer as
Liquidation Proceeds or Insurance Proceeds in respect of any BANA
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Mortgage
Loan. The documents constituting the Servicing File shall be held by
the Servicer as custodian and bailee for the Trustee. All Mortgage
Files and funds collected or held by, or under the control of, the Servicer in
respect of any BANA 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 BANA 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 BANA Custodial
Account, Master Servicer Custodial 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 BANA 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
2.16.
Servicing
Compensation.
The
Servicer shall be entitled out of each payment of interest on a BANA Mortgage
Loan (or portion thereof) included in the Trust Estate to retain or withdraw
from the BANA Custodial Account an amount equal to the Servicing Fee for such
Distribution Date.
Additional
servicing compensation in the form of Excess Proceeds, prepayment penalties,
assumption fees, late payment charges and all income and gain net of any losses
realized from Permitted Investments and all other customary and ancillary income
and fees shall be retained by the related Servicer to the extent not required to
be deposited in the related BANA Custodial Account pursuant to
Section 2.07(b). The Servicer shall be required to pay all expenses
incurred by it in connection with its servicing activities hereunder and shall
not be entitled to reimbursement therefor except as specifically provided in
this Agreement.
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 Prepayment Interest Shortfall for such Distribution
Date relating to the BANA Mortgage Loans serviced by such Servicer and
(b) one-twelfth of 0.25% of the aggregate Stated Principal Balance of such
BANA Mortgage Loans for such Distribution Date (any such reduction, “Compensating
Interest”).
Section
2.17.
Annual Statement as to
Compliance.
The
Servicer shall deliver to the Master Servicer and the Depositor (and the Master
Servicer will forward to the Trustee, the Securities Administrator and each
Rating Agency), no later than March 5 following the end of each calendar year
commencing with March 2009, an Officer’s Certificate in the form required by
Item 1123 of Regulation AB, to the effect that (i) an
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authorized
officer of the Servicer has reviewed (or a review has been made under his or her
supervision of) the Servicer’s activities under this Agreement during the prior
calendar year and (ii) to the best of such officer’s knowledge, based on
such review, the Servicer has fulfilled all its obligations under this Agreement
in all material respects throughout such year, or, if there has been a default
in the fulfillment of any such obligation in any material respect, specifying
each such default known to such officer and the nature and status
thereof.
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Section
2.18.
|
Annual Independent
Public Accountants’ Servicing Statement; Financial Statements; Provision
of Additional Information.
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On or
before March 5 of each calendar year, commencing in 2009, the Servicer
shall:
(a) deliver
to the Master Servicer and the Depositor a report (in form and substance
reasonably satisfactory to the Master Servicer and the Depositor) regarding the
Servicer’s assessment of compliance with the Servicing Criteria during the
immediately preceding calendar year, as required under Rules 13a-18 and 15d-18
of the Exchange Act and Item 1122 of Regulation AB. Such report shall
be addressed to the Master Servicer and the Depositor and signed by an
authorized officer of the Servicer, and shall address each of the “Applicable
Servicing Criteria” specified on Exhibit E
hereto;
(b) Not later
than March 5th of each
calendar year, following the end of each calendar year commencing with March
2009, the Servicer, at its expense, shall cause a registered public accounting
firm which is a member of the institute of certified public accountants to
furnish to the Master Servicer and the Depositor a report by such accounting
firm that attests to, and reports on, the assessment made by the Servicer
pursuant to this Section 2.18, as required by Rules 13a-18 and 15d-18 under the
Exchange Act, and Item 1122(b) of Regulation AB. Such attestation
shall be in accordance with Rule 1-02(a)(3) and Rule 2-02(g) of Regulation S-X
under the Securities Act and the Exchange Act;
(c) cause
each Subservicer, and each Subcontractor determined by the Servicer pursuant to
Section 2.02 to be “participating in the servicing function” within the meaning
of Item 1122 of Regulation AB and deliver to the Master Servicer and the
Depositor an assessment of compliance and accountants’ attestation as and when
provided in paragraphs (a) and (b) of this Section; and
(d) with
respect to any year in which a certification under the Xxxxxxxx-Xxxxx Act of
2002, as amended, is required to be given with respect to the Trust Fund,
deliver, or cause each Subservicer and Subcontractor described in Section
2.18(c) to provide, to the Depositor, the Master Servicer and any other Person
that will be responsible for signing the certification (a “Sarbanes
Certification”) required by Rules 13a-14(d) and 15d-14(d) under the
Exchange Act (pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on
behalf of an asset-backed issuer with respect to a Securitization Transaction a
certification, signed by the appropriate officer of the Servicer, in the form
attached hereto as Exhibit
B. In addition, the Servicer shall indemnify and hold harmless
the Master Servicer and the Depositor and their officers, directors and
affiliates from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other costs
and expenses arising out of or
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based
upon any inaccuracy in the certification provided by it pursuant to
Section 2.18(c), any breach of its obligations under Section 2.17 and
Section 2.18 or its negligence, bad faith or willful misconduct in connection
therewith. If the indemnification provided for herein is unavailable
or insufficient to hold harmless the Master Servicer, the Depositor and their
respective officers, directors and affiliates, then the Servicer agrees that it
shall contribute to the amount paid or payable by the Master Servicer or the
Depositor and their respective officers, directors or affiliates as a result of
the losses, claims, damages or liabilities of the Master Servicer or the
Depositor and their respective officers, directors and affiliates in such
proportion as is appropriate to reflect the relative fault of the Master
Servicer or the Depositor and their respective officers, directors and
affiliates on the one hand and such Servicer on the other in connection with a
breach of its obligations under Section 2.17 or Section 2.18 or its negligence,
bad faith or willful misconduct in connection therewith. The
obligations set forth in paragraphs (c) and (d) shall only apply with respect to
periods for which reports on Form 10-K will be filed for the Trust
Fund.
Section
2.19.
Advances.
The
Servicer shall determine on or before each Determination Date whether it is
required to make a Monthly Advance pursuant to the definition
thereof. If the Servicer determines it is required to make a Monthly
Advance, it shall, on or before the Remittance Date, either (a) deposit
into the BANA Custodial Account an amount equal to the Advance and/or
(b) make an appropriate entry in its records relating to the BANA Custodial
Account that any portion of the Amount Held for Future Distribution in the BANA
Custodial Account has been used by the Servicer in discharge of its obligation
to make any such Monthly Advance. Any funds so applied shall be
replaced by the Servicer by deposit in the BANA Custodial Account no later than
the close of business on the Business Day preceding the next Remittance Date.
The Servicer shall be entitled to be reimbursed from the BANA Custodial Account
for all Advances (including all Capitalization Reimbursement Amounts) of its own
funds made pursuant to this Section 2.19 as provided in
Section 2.10. The obligation to make Monthly Advances with
respect to any BANA Mortgage Loan shall continue until the ultimate disposition
of the REO Property or Mortgaged Property relating to such BANA Mortgage Loan.
The Servicer shall inform the Master Servicer and the Securities Administrator
of the amount of the Monthly Advance to be made by it no later than the related
Remittance Date.
The
Servicer shall deliver to the Master Servicer and the Securities Administrator
on the Determination Date an Officer’s Certificate of a Servicing Officer
indicating the amount of any proposed Monthly Advance determined by the Servicer
to be a Nonrecoverable Advance. Notwithstanding anything to the
contrary, the Servicer shall not be required to make any Monthly Advance or
Servicing Advance that would be a Nonrecoverable Advance.
Section
2.20.
Modifications, Waivers,
Amendments and Consents.
(a) Subject
to this Section 2.20, the Servicer may agree to any modification, waiver,
forbearance, or amendment of any term of any BANA Mortgage Loan without the
consent of the Master Servicer, the Securities Administrator, the Trustee or any
Certificateholder. All
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modifications,
waivers, forbearances or amendments of any BANA 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 2.12,
which waiver, if any, shall be governed by Section 2.12), forbearance or
amendment of any term of any BANA Mortgage Loan if such modification, waiver,
forbearance, or amendment would:
(i) forgive
principal owing under such Mortgage Loan or permanently reduce the interest rate
on such Mortgage Loan;
(ii) affect
the amount or timing of any related payment of principal, interest or other
amount payable thereunder;
(iii) in the
Servicer’s judgment, materially impair the security for such BANA Mortgage Loan
or reduce the likelihood of timely payment of amounts due thereon;
or
(iv) otherwise
constitute a “significant modification” within the meaning of Treasury
Regulations Section 1.860G-2(b);
unless
(A) (1) the Mortgagor is in default with respect to the BANA Mortgage Loan or
such default is, in the judgment of the Servicer, reasonably foreseeable, and
(2) the Servicer has reasonably determined that such modification, waiver,
forbearance or amendment is in the best interests of the Certificateholders or
(B) such modification complies with all of the conditions of IRS Revenue
Procedure 2008-28. For the avoidance of doubt, a modification,
waiver, forbearance or amendment shall be deemed to be in the best interests of
the Certificateholders if the Servicer determines that such modification,
waiver, forbearance or amendment is reasonably likely to increase the proceeds
of the related BANA Mortgage Loan over the amount expected to be collected
pursuant to foreclosure. Subject to Customary Servicing Procedures, the Servicer
may permit a forbearance for a BANA Mortgage Loan which in the Servicer’s
reasonable judgment is subject to imminent default.
(c) If, in
connection with any modification, a BANA Mortgage Loan has been modified to
increase its principal balance by the amount of any Advances previously made by
the Servicer on behalf of the related Mortgagor (any such amount, a
“Capitalization Reimbursement Amount”), the Servicer may be reimbursed for such
Capitalization Reimbursement Amount as provided in Section 2.10.
(d) 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 BANA 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 it, which amount shall be retained by the
Servicer as additional servicing compensation.
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(e) The
Servicer shall notify the Master Servicer, in writing, of any modification,
waiver, forbearance or amendment of any term of any BANA 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
2.21.
Reports to the Securities
and Exchange Commission.
(a) The
Servicer shall reasonably cooperate with the Depositor and the Master Servicer
in connection with the Trust’s satisfying its reporting requirements under the
Exchange Act.
(b) The
Servicer hereby agrees to reasonably cooperate to enable the Trust to fully
comply with all Securities and Exchange Commission (“SEC”) disclosure and
reporting requirements in effect from time to time with respect to the Trust and
any securities representing ownership interests in or backed by assets of the
Trust, including without limitation, Regulation AB.
(c) The
Servicer hereby acknowledges and agrees that the Depositor, the Master Servicer
and the Securities Administrator are relying on its performance of its
obligations under Sections 2.17 and 2.18 in order to perform their respective
obligations under Section 3.22 of the Pooling and Servicing
Agreement.
(d) The
Servicer shall notify the Master Servicer of any proceedings of the type
described in Item 1117 of Regulation AB, together with a description thereof,
within two Business Days of the Servicer’s knowledge thereof. In addition, the
Servicer shall notify the Master Servicer of any affiliations or relationships
that develop following the Closing Date between the Servicer and any of parties
listed in Item 1119 of Regulation AB, together with a description thereof,
within two Business Days of the Servicer’s knowledge
thereof.
(e) In
addition to such information as the Servicer is obligated to provide pursuant to
other provisions of this Agreement, not later than ten days prior to the
deadline for the filing of any distribution report on Form 10-D in respect of
any securitization transaction that includes any of the BANA Mortgage Loans
serviced by the Servicer or any Subservicer, the Servicer or such Subservicer,
as applicable, shall, to the extent the Servicer or such Subservicer has
knowledge, provide to the party responsible for filing such report (including,
if applicable, the Master Servicer) notice of the occurrence of any of the
following events along with all information, data, and materials related thereto
as may be required to be included in the related distribution report on Form
10-D (as specified in the provisions of Regulation AB referenced
below):
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(i) any
material modifications, extensions or waivers of pool asset terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time (Item 1121(a)(11) of Regulation AB);
(ii) material
breaches of pool asset representations or warranties or transaction covenants
(Item 1121(a)(12) of Regulation AB); and
(iii) information
regarding new asset-backed securities issuances backed by the same pool assets,
any material pool asset changes (such as, additions, substitutions or
repurchases), and any material changes in origination, underwriting or other
criteria for acquisition or selection of pool assets (Item 1121(a)(14) of
Regulation AB).
Upon
request, the Servicer shall provide to the Master Servicer and the Depositor
evidence of the authorization of the person signing any certification or
statement, copies or other evidence of Fidelity Bond Insurance and Errors and
Omission Insurance policy, financial information and reports, and such other
information related to the Servicer or any Subservicer or the Servicer or such
Subservicer’s performance hereunder.
The
obligations set forth in paragraphs (d) and (e) of this Section shall only apply
with respect to periods for which reports are required to be filed with respect
to the Trust under the Exchange Act.
Section
2.22.
Lost Instruments Affidavit
and Indemnity.
With
respect to any BANA Mortgage Loan, if a “lost instruments affidavit and
indemnity” or any equivalent document is required pursuant to Section 2.01(b) of
the Pooling and Servicing Agreement, the Servicer shall prepare, execute and
deliver or cause to be prepared, executed and delivered, on behalf of the Trust,
such a document to the public recording office.
ARTICLE
III
SERVICER’S
CERTIFICATE; REMITTANCES
Section
3.01.
Servicer’s
Certificate.
Each
month, not later than 12:00 noon Eastern time on the 5th
Business Day of such month (or if such day is not a Business Day, the following
Business Day), the Servicer shall deliver to the Securities Administrator and
the Master Servicer, a Servicer’s Certificate (in substance and format mutually
acceptable to the Servicer, the Securities Administrator and the Master
Servicer) certified by a Servicing Officer setting forth the information
reasonably necessary in order for each of the Securities Administrator and the
Master Servicer to perform its respective obligations under the Pooling and
Servicing Agreement, including a delinquency report substantially in the form
set forth in Exhibit
C-1, a monthly remittance advice substantially in the form set forth in
Exhibit C-2,
and a realized loss report substantially in the
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form set
forth in Exhibit
C-3, or such other reporting formats agreed to by the Servicer, the
Securities Administrator and the Master Servicer each in a mutually agreeable
electronic format, as to the remittance on such Remittance Date and as to the
period ending on the last day of the month preceding such Remittance
Date. Each of the Securities Administrator and the Master Servicer
may conclusively rely upon the information contained in the Servicer’s
Certificate for all purposes hereunder and shall have no duty to verify or
re-compute any of the information contained therein.
Section
3.02. Remittances.
On each
Remittance Date, the Servicer shall remit by wire transfer of immediately
available funds to the Master Servicer an amount equal to the portion of the
Pool Distribution Amount relating to the BANA Mortgage Loans and any other
amounts due to the Master Servicer under this Agreement for such Distribution
Date, to the extent on deposit. The Servicer shall send wire
remittances to the Master Servicer pursuant to the following wire
instructions: LASALLE BANK NATIONAL ASSOCIATION, ABA# 000000000, FOR
CREDIT TO: LaSalle CHGO/CTR/BNF:/LaSalle Tr, FFC TO: BAFC 2008-1 #
725470.
With respect to any remittance received by the Purchaser after the
Business Day on which such payment was due, the Servicer shall pay to the
Purchaser interest on any such late payment at an annual rate equal to the Prime
Rate, adjusted as of the date of each change, plus three percentage points, but
in no event greater than the maximum amount permitted by applicable law.
Such interest shall be deposited in the BANA Custodial Account by the Servicer
on the date such late payment is made and shall cover the period commencing with
the day following Business Day on which such payment was due and ending with the
Business Day on which such payment is made, both inclusive. Such interest
shall be remitted along with the distribution payable on the next succeeding
Remittance Date. The payment by the Company of any such interest shall not
be deemed an extension of time for payment or a waiver of any Event of Default
by the Servicer.
ARTICLE
IV
THE
SERVICER
Section
4.01.
Liabilities of the
Servicer.
The
Servicer shall be liable in accordance herewith only to the extent of the
obligations specifically and respectively imposed upon and undertaken by the
Servicer herein.
Section
4.02.
Merger or Consolidation of
the Servicer.
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 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
BANA Mortgage Loans and to perform its duties under this Agreement.
Any
Person into which the Servicer may be merged or consolidated, or any corporation
resulting from any merger or consolidation to which the Servicer shall be a
party, or any Person succeeding to the business of the Servicer,
shall be the successor of the Servicer, 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 Xxxxxx Xxx or Xxxxxxx Mac.
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Section
4.03. Limitation on Liability of
the Servicer.
None of
the Servicer or any of the directors, officers, employees or agents 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 Servicer or any such Person against any breach of
warranties or representations made herein or any liability which would otherwise
be imposed by reason of willful misfeasance, bad faith or gross negligence in
the performance of duties or by reason of reckless disregard of obligations and
duties hereunder. The Servicer and any director, officer, employee or
agent of 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 Servicer and any director, officer, employee or agent
of 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 BANA Mortgage Loan or BANA Mortgage
Loans (except as any such loss, liability or expense shall be otherwise
reimbursable pursuant to this Agreement) and any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or gross negligence in the
performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder. The Servicer shall not 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 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
Servicer shall be entitled to be reimbursed therefor out of amounts attributable
to the BANA Mortgage Loans on deposit in the BANA Custodial Account as provided
by Section 2.10.
Section
4.04.
Servicer Not to Resign;
Transfers of Servicing.
(a) Subject
to the provisions of Section 4.02, the Servicer shall not resign from its
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 Servicer shall be evidenced
by an Opinion of Counsel to such effect delivered to the Master
Servicer. No such resignation by the Servicer shall become effective
until the Master Servicer or a successor Servicer shall have assumed such
Servicer’s responsibilities and obligations in accordance with
Section 5.02.
(b) The
Servicer may, at its option, transfer the servicing responsibilities with
respect to any or all of the BANA Mortgage Loans to Xxxxx Fargo Bank, N.A., as
servicer; provided Xxxxx Fargo Bank, N.A. agrees to service such Mortgage Loans
pursuant to the terms of the Servicing Agreement, dated as of July 1, 2006, by
and between Bank of America, National Association and Xxxxx Fargo Bank, N.A., as
amended by Amendment No. 1 thereto, dated as of June 1, 2007, and as modified by
the Assignment, Assumption and Recognition Agreement, dated May 30, 2008, among
Bank of America, National Association, Xxxxx Fargo Bank, N.A.,
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the
Depositor, the Trustee and the Master Servicer and there exists no Event of
Default thereunder.
Section
4.05.
Representations, Warranties
and Covenants of the Servicer.
(a) The
Servicer hereby makes the following representations and warranties to the
Depositor, the Master Servicer, the Securities Administrator and the Trustee, as
of the Closing Date:
(i) The
Servicer is a national banking association duly organized, validly existing and
in good standing under the laws of the United States and has all licenses
necessary to carry on its business as now being conducted and is licensed,
qualified and in good standing in each of the states where a Mortgaged Property
is located if the laws of such state require licensing or qualification in order
to conduct business of the type conducted by the Servicer. The
Servicer has power and authority to execute and deliver this Agreement and to
perform in accordance herewith; the execution, delivery and performance of this
Agreement (including all instruments of transfer to be delivered pursuant to
this Agreement) by the Servicer and the consummation of the transactions
contemplated hereby have been duly and validly authorized. This
Agreement, assuming due authorization, execution and delivery by the other
parties hereto, evidences the valid, binding and enforceable obligation of the
Servicer, subject to applicable law except as enforceability may be limited by
(A) bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the enforcement of the rights of
creditors and (B) general principles of equity, whether enforcement is
sought in a proceeding in equity or at law. All requisite corporate
action has been taken by the Servicer to make this Agreement valid and binding
upon the Servicer in accordance with its terms.
(ii) No
consent, approval, authorization or order is required for the transactions
contemplated by this Agreement from any court, governmental agency or body, or
federal or state regulatory authority having jurisdiction over the Servicer is
required or, if required, such consent, approval, authorization or order has
been or will, prior to the Closing Date, be obtained.
(iii) The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Servicer and will not result in the breach of
any term or provision of the amended and restated article of association or
by-laws of the Servicer or result in the breach of any term or provision of, or
conflict with or constitute a default under or result in the acceleration of any
obligation under, any agreement, indenture or loan or credit agreement or other
instrument to which the Servicer or its property is subject, or result in the
violation of any law, rule, regulation, order, judgment or decree to which the
Servicer or its property is subject.
(iv) There is
no action, suit, proceeding or investigation pending or, to the best knowledge
of the Servicer, threatened against the Servicer which, either individually or
in the aggregate, would result in any material adverse change in the business,
operations, financial condition, properties or assets of the Servicer, or in any
material impairment of
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the right
or ability of the Servicer to carry on its business substantially as now
conducted or which would draw into question the validity of this Agreement or
the Mortgage Loans or of any action taken or to be taken in connection with the
obligations of the Servicer contemplated herein, or which would materially
impair the ability of the Servicer to perform under the terms of this
Agreement.
(b) The
representations and warranties made pursuant to this Section 4.05 shall
survive delivery of the Mortgage Files to the Trustee for the benefit of the
Certificateholders.
Section
4.06.
REMIC Related
Covenants.
For as
long as the Trust shall exist, the Servicer shall act in accordance herewith to
assure continuing treatment of each REMIC as a REMIC and avoid the imposition of
tax on any REMIC. In particular:
(a) Except as
otherwise provided in the Code, (i) the Servicer shall not contribute to
the Trust Estate property unless substantially all of the property held in any
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 REMICs imposed by Code
Section 860G(d).
(b) The
Servicer shall not knowingly accept, on behalf of the Trust Estate any income
from assets other than those permitted to be held by a REMIC.
The
Servicer shall not engage in a “prohibited transaction” (as defined in Code
Section 860F(a)(2)), except that, with the prior written consent of the
Master Servicer, the Securities Administrator and the Depositor, the Servicer
may engage in the activities otherwise prohibited by the foregoing paragraphs
(a) and (b); provided that the Servicer shall have delivered to the Master
Servicer and the Securities Administrator an Opinion of Counsel to the effect
that such transaction will not result in the imposition of a tax on any REMIC
and will not disqualify any REMIC from treatment as a REMIC; and, provided
further, that the Servicer shall have demonstrated to the satisfaction of the
Master Servicer and the Securities Administrator that such action will not
adversely affect the rights of the Holders of the Certificates, the Master
Servicer and the Securities Administrator and that such action will not
adversely impact the rating of the Certificates.
ARTICLE
V
DEFAULT
Section
5.01.
Events of
Default.
If any
one of the following events (“Events of Default”)
shall occur and be continuing:
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(a) any
failure by the Servicer to deposit amounts in the BANA Custodial Account in the
amount and manner provided herein so as to enable the Securities Administrator
to distribute to Holders of Certificates any payment required to be made under
the terms of such Certificates and this Agreement (other than the payments
required to be made under Section 2.19); or
(b) failure
on the part of the Servicer duly to observe or perform in any material respect
any other covenants or agreements of the Servicer set forth in the Certificates
or in this Agreement, which covenants and agreements continue unremedied for a
period of 30 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer by the
Master Servicer, the, Securities Administrator, the Trustee or the Depositor, or
to the Servicer, the Master Servicer, the Depositor, the Securities
Administrator and the Trustee by the Holders of Certificates evidencing Voting
Rights aggregating not less than 25% of all Certificates affected thereby;
or
(c) the entry
of a decree or order by a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator, receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings against the 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;
(e) the
failure of the Servicer to remit any Monthly Advance required to be remitted by
the Servicer pursuant to Section 2.19 which failure continues unremedied at
3:00 p.m. Eastern time on the Business Day prior to the related Distribution
Date;
(f) failure
by the Servicer to duly perform, within the required time period, its
obligations under Sections 2.17, 2.18 and 2.21, which failure continues
unremedied for a period of ten (10) days after the date of such
failure;
then, and
in each and every such case (other than clause (e) hereof), so long as an
Event of Default shall not have been remedied by the Servicer, the Trustee
shall, pursuant to the Pooling and Servicing Agreement, by notice then given in
writing to the Servicer and the Depositor, terminate all of the rights and
obligations of the Servicer under this Agreement. If an Event of
Default described in clause (e) hereof shall occur, the Trustee shall, by
notice to the Servicer and the Securities Administrator, terminate all of the
rights and obligations of the Servicer under this Agreement and in and to the
BANA Mortgage Loans and proceeds thereof and the Master Servicer or a successor
Servicer appointed pursuant to Section 5.02 shall make the Advance which
the Servicer failed to make. On or after the receipt by the Servicer
of such written notice, all authority and power of the Servicer under this
Agreement, whether with respect to the
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Certificates
or the BANA Mortgage Loans or otherwise, shall pass to and be vested in the
Master Servicer pursuant to and under this Section 5.01 and
Section 5.02(a), unless and until such time as the Master Servicer shall
appoint a successor Servicer pursuant to Section 5.02, and, without
limitation, the Master Servicer 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 BANA
Mortgage Loans and related documents, or otherwise, including, without
limitation, the recordation of the assignments of the BANA Mortgage Loans to
it. The Servicer agrees to cooperate with the Master Servicer in
effecting the termination of the responsibilities and rights of the Servicer
hereunder, including, without limitation, the transfer to the Master Servicer
for the administration by it of all cash amounts that have been deposited by the
Servicer in the BANA Custodial Account or thereafter received by the Servicer
with respect to the BANA Mortgage Loans. All costs and expenses
(including attorneys’ fees) incurred in connection with transferring the
Mortgage Files to the successor Servicer and amending this Agreement to reflect
such succession as Servicer pursuant to this Section 5.01 shall be paid by
the predecessor Servicer. Notwithstanding the termination of the
Servicer pursuant hereto, the Servicer shall remain liable for any causes of
action arising out of any Event of Default occurring prior to such
termination.
Section
5.02.
Master Servicer to Act;
Appointment of Successor.
(a) Within 90
days of the time the Servicer receives a notice of termination pursuant to
Section 5.01, the Master Servicer (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 2.06. Notwithstanding the foregoing,
(i) the parties hereto agree that the Master Servicer, in its capacity as
successor Servicer, immediately will assume all of the obligations of the
Servicer under this Agreement, (ii) the Master Servicer, in its capacity as
successor Servicer, shall not be responsible for the lack of information and/or
documents that it cannot obtain through reasonable efforts and (iii) under
no circumstances shall any provision of this Agreement be construed to require
the Master Servicer, acting in its capacity as successor to the Servicer, 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 5.02(b), as compensation therefor, the Master Servicer 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 Master Servicer 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
-31-
termination
as Servicer, nor shall any successor Servicer be liable for any acts or
omissions of the predecessor Servicer or for any breach by the Servicer of any
of its representations or warranties contained herein or in any related document
or agreement. Pending appointment of a successor to the terminated
Servicer hereunder, unless the Master Servicer is prohibited by law from so
acting, the Master Servicer shall act in such capacity as provided above. The
Master Servicer 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 Trust.
(b) In
connection with the appointment of a successor Servicer or the assumption of the
duties of the Servicer, as specified in Section 5.02(a), the Master
Servicer may make such arrangements for the compensation of such successor as it
and such successor agree.
(c)
Any
successor, including the Master Servicer, to the Servicer as servicer shall
during the term of its service as servicer maintain in force (i) a policy
or policies of insurance covering errors and omissions in the performance of its
obligations as servicer hereunder and (ii) a fidelity bond in respect of
its officers, employees and agents to the same extent as the Servicer is so
required pursuant to Section 2.03.
ARTICLE
VI
TERMINATION
|
Section
6.01.
|
Termination upon
Purchase or Liquidation of All Mortgage
Loans.
|
Subject
to Section 10.02 of the Pooling and Servicing Agreement, the respective
obligations and responsibilities of the Depositor and the Servicer created
hereby shall terminate upon the earlier of (a) the last action required to be
taken by the Securities Administrator on the Final Distribution Date pursuant to
Article X of the Pooling and Servicing Agreement or (b) the final payment
or other liquidation (or any advance with respect thereto) of the last BANA
Mortgage Loan remaining in the Trust Estate or the disposition of all related
REO Property.
ARTICLE
VII
MISCELLANEOUS
PROVISIONS
Section
7.01.
Amendment.
This
Agreement may be amended from time to time by the Servicer and the Depositor
with a written agreement signed by the Servicer and the Depositor; provided that the party
requesting such amendment shall, at its own expense, provide the Trustee, the
Securities Administrator and the Master Servicer with an Opinion of Counsel that
such amendment will not materially adversely affect the interest of the
Certificateholders in the BANA Mortgage Loans. Any such amendment
shall be deemed not to adversely affect in any material respect any
interest
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of the
Certificateholders in the BANA Mortgage Loans if the Trustee and the Securities
Administrator each receives written confirmation from each Rating Agency that
such amendment will not cause such Rating Agency to reduce, qualify or withdraw
the then current rating assigned to the Certificates (and any Opinion of Counsel
received by the Trustee, Securities Administrator and the Master Servicer in
connection with any such amendment may rely expressly on such confirmation as
the basis therefore);
provided, however, this Agreement may be amended by the Servicer and the
Depositor from time to time without the delivery of an Opinion of Counsel
described above to the extent necessary, in the judgment of the Servicer and its
counsel, to comply with the rules and regulations of the SEC.
Section
7.02.
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
7.03. 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, to (a) in the case of the Depositor, Banc of
America Funding Corporation, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Xxxxx Xxxxx, with a copy
to: Bank of America Legal Department, 000 Xxxxx Xxxxx Xxxxxx, 30th Floor,
NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Associate
General Counsel and (b) in the case of the Servicer, Bank of America,
National Association, 000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxxx, Xxx Xxxx 00000-0000,
Attention: Servicing Manager.
Section
7.04. 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
-33-
terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section
7.05. Assignment by the
Depositor.
Simultaneously
with the conveyances of (i) the BANA Mortgage Loans on a servicing-retained
basis by Bank of America, National Association to the Depositor pursuant to the
Mortgage Loan Purchase Agreement and (ii) the BANA Mortgage Loans by the
Depositor to the Trustee pursuant to the Pooling and Servicing Agreement, the
Depositor will assign all of its rights hereunder to the Trustee, and the
Trustee then shall succeed to all rights of the Depositor under this
Agreement.
Section
7.06. Trustee
Capacity.
It is
expressly understood and agreed by the parties hereto that (i) this Agreement is
executed and delivered by U.S. Bank National Association not individually or
personally but solely as trustee on behalf of the Trust, in the exercise of the
powers and authority conferred and vested in it under the terms of the Pooling
and Servicing Agreement, and (ii) under no circumstances shall U.S. Bank
National Association be personally liable for the payment of any indebtedness or
expenses of the Trust, or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trust under this
Agreement or any other related documents, as to all of which recourse shall be
had solely to the assets of the Trust in accordance with the terms of the
Pooling and Servicing Agreement.
Section
7.07. Insolvency.
The
Servicer shall notify the Depositor and the Securities Administrator of any of
the events enumerated in Item 1.03 of Form 8-K with respect to the Servicer at
least two Business Days prior to the effective date thereof and shall provide
the Depositor and the Securities Administrator with all information required by
the Depositor to comply with its reporting obligation under Item 1.03 of Form
8-K not later than the effective date of any such event.
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IN
WITNESS WHEREOF, the Depositor and the Servicer have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized to be
hereunto affixed, all as of the day and year first above written.
BANC OF
AMERICA FUNDING CORPORATION,
as
Depositor
By:
/s/ Xxxxx
Xxxxx
Name: Xxxxx
Xxxxx
Title: Senior
Vice President
BANK OF
AMERICA, NATIONAL ASSOCIATION,
as
Servicer
By:
/s/ Xxxxx X.
Good
Name: Xxxxx
X. Good
Title: Principal
[BAFC
2008-1 -- BANA Servicing Agreement]
Acknowledged
and agreed to by:
LASALLE
BANK NATIONAL ASSOCIATION,
as
Securities Administrator and as Master Servicer
By: /s/ Xxxx
Xxxxx
Name:
Xxxx Xxxxx
Title: Vice
President
U.S. BANK
NATIONAL ASSOCIATION,
as
Trustee
By: /s/ Xxxxxxx X.
Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title: Vice
President
[BAFC
2008-1 -- BANA Servicing Agreement]
