EXHIBIT 4
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XXXX XX XXXXXXX FUNDING CORPORATION,
as Depositor,
GREENPOINT MORTGAGE FUNDING, INC.,
as a Servicer,
BANK OF AMERICA, NATIONAL ASSOCIATION,
as a Servicer,
NATIONAL CITY MORTGAGE CO.,
as a Servicer,
and
XXXXX FARGO BANK, N.A.,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated March 30, 2005
-----------------------
Mortgage Pass-Through Certificates
Series 2005-B
================================================================================
TABLE OF CONTENTS
PRELIMINARY STATEMENT......................................................
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms................................................
Section 1.02 Calculations.................................................
Section 1.03 Rights of the NIMS Insurer...................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.................................
Section 2.02 Acceptance by the Trustee of the Mortgage Loans..............
Section 2.03 Representations, Warranties and Covenants of the Servicers...
Section 2.04 Representations and Warranties of the Depositor as
to the Mortgage Loans......................................
Section 2.05 Designation of Interests in the REMICs.......................
Section 2.06 Designation of Start-up Day..................................
Section 2.07 REMIC Certificate Maturity Date..............................
Section 2.08 Execution and Delivery of Certificates.......................
Section 2.09 Repurchase of Converted Mortgage Loans.......................
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicers to Service Mortgage Loans..........................
Section 3.02 Subservicing; Enforcement of the Obligations of the
Servicers..................................................
Section 3.03 Fidelity Bond; Errors and Omissions Insurance................
Section 3.04 Access to Certain Documentation..............................
Section 3.05 Maintenance of Primary Mortgage Insurance Policy;
Claims; Collection of BPP Mortgage Loan Payments...........
Section 3.06 Rights of the Depositor and the Trustee in Respect
of the Servicers...........................................
Section 3.07 Trustee to Act as Servicer...................................
Section 3.08 Collection of Mortgage Loan Payments.........................
Section 3.09 Collection of Mortgage Loan Payments; Servicer Custodial
Accounts, Distribution Account and Reserve Account........
Section 3.10 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts...........................................
Section 3.11 Access of Trustee and NIMS Insurer to Certain Documentation
and Information Regarding the Mortgage Loans..............
Section 3.12 Permitted Withdrawals from the Servicer Custodial Accounts
and the Distribution Account..............................
Section 3.13 Maintenance of Hazard Insurance and Other Insurance..........
Section 3.14 Enforcement of Due-On-Sale Clauses; Assumption Agreements....
Section 3.15 Realization Upon Defaulted Mortgage Loans; REO Property......
Section 3.16 Trustee to Cooperate; Release of Mortgage Files..............
Section 3.17 Documents, Records and Funds in Possession of the
Servicers to be Held for the Trustee.......................
Section 3.18 Servicing Compensation.......................................
Section 3.19 Annual Statement as to Compliance............................
Section 3.20 Annual Independent Public Accountants' Servicing
Statement; Financial Statements............................
Section 3.21 Advances.....................................................
Section 3.22 Modifications, Waivers, Amendments and Consents..............
Section 3.23 Reports to the Securities and Exchange Commission............
ARTICLE IV
SERVICERS' CERTIFICATES
Section 4.01 Servicers' Certificates......................................
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01 Distributions................................................
Section 5.02 Priorities of Distributions for the Shifting Interest Groups.
Section 5.03 Priorities of Distributions for Group 3......................
Section 5.04 Allocation of Losses for the Shifting Interest Certificates..
Section 5.05 Allocation of Losses for the Group 3 Certificates............
Section 5.06 Statements to Certificateholders.............................
Section 5.07 Tax Returns and Reports to Certificateholders................
Section 5.08 Tax Matters Person...........................................
Section 5.09 Rights of the Tax Matters Person in Respect of the Trustee...
Section 5.10 REMIC Related Covenants......................................
Section 5.11 REMIC Distributions..........................................
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates.............................................
Section 6.02 Registration of Transfer and Exchange of Certificates........
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 6.04 Persons Deemed Owners........................................
ARTICLE VII
THE DEPOSITOR AND THE SERVICERS
Section 7.01 Respective Liabilities of the Depositor and the Servicers....
Section 7.02 Merger or Consolidation of the Depositor or a Servicer.......
Section 7.03 Limitation on Liability of the Depositor, the
Servicers and Others.........................................
Section 7.04 Depositor and Servicers Not to Resign........................
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default............................................
Section 8.02 Remedies of Trustee..........................................
Section 8.03 Directions by Certificateholders and Duties of
Trustee During Event of Default............................
Section 8.04 Action upon Certain Failures of a Servicer and upon
Event of Default...........................................
Section 8.05 Trustee to Act; Appointment of Successor.....................
Section 8.06 Notification to Certificateholders...........................
ARTICLE IX
THE TRUSTEE
Section 9.01 Duties of Trustee............................................
Section 9.02 Certain Matters Affecting the Trustee........................
Section 9.03 Trustee not Liable for Certificates or Mortgage Loans........
Section 9.04 Trustee May Own Certificates.................................
Section 9.05 Eligibility Requirements for Trustee.........................
Section 9.06 Resignation and Removal of Trustee...........................
Section 9.07 Successor Trustee............................................
Section 9.08 Merger or Consolidation of Trustee...........................
Section 9.09 Appointment of Co-Trustee or Separate Trustee................
Section 9.10 Authenticating Agents........................................
Section 9.11 Trustee's Expenses...........................................
Section 9.12 Appointment of Custodian.....................................
Section 9.13 Paying Agents................................................
Section 9.14 Limitation of Liability......................................
Section 9.15 Trustee May Enforce Claims Without Possession
of Certificates............................................
Section 9.16 Suits for Enforcement........................................
Section 9.17 Waiver of Bond Requirement...................................
Section 9.18 Waiver of Inventory, Accounting and Appraisal Requirement....
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase or Liquidation of All
Mortgage Loans............................................
Section 10.02 Additional Termination Requirements.........................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment...................................................
Section 11.02 Recordation of Agreement; Counterparts......................
Section 11.03 Limitation on Rights of Certificateholders..................
Section 11.04 Governing Law...............................................
Section 11.05 Notices.....................................................
Section 11.06 Severability of Provisions..................................
Section 11.07 Certificates Nonassessable and Fully Paid...................
Section 11.08 Access to List of Certificateholders........................
Section 11.09 Recharacterization..........................................
Section 11.10 Third Party Beneficiary.....................................
EXHIBITS
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Exhibit A-1-A-1 Form of Face of Class 1-A-1 Certificate
Exhibit A-1-A-R Form of Face of Class 1-A-R Certificate
Exhibit A-2-A-1 Form of Face of Class 2-A-1 Certificate
Exhibit A-3-A-1 Form of Face of Class 3-A-1 Certificate
Exhibit A-3-A-1A Form of Face of Class 3-A-1A Certificate
Exhibit A-3-A-1B Form of Face of Class 3-A-1B Certificate
Exhibit A-3-A-2 Form of Face of Class 3-A-2 Certificate
Exhibit A-3-A-2A Form of Face of Class 3-A-2A Certificate
Exhibit A-3-A-2B Form of Face of Class 3-A-2B Certificate
Exhibit A-3-A-3 Form of Face of Class 3-A-3 Certificate
Exhibit A-3-CE Form of Face of Class 3-CE Certificate
Exhibit A-3-P Form of Face of Class 3-P Certificate
Exhibit B-CB-1 Form of Face of Class CB-1 Certificate
Exhibit B-CB-2 Form of Face of Class CB-2 Certificate
Exhibit B-CB-3 Form of Face of Class CB-3 Certificate
Exhibit B-CB-4 Form of Face of Class CB-4 Certificate
Exhibit B-CB-5 Form of Face of Class CB-5 Certificate
Exhibit B-CB-6 Form of Face of Class CB-6 Certificate
Exhibit B-3-M-1 Form of Face of Class 3-M-1 Certificate
Exhibit B-3-M-2 Form of Face of Class 3-M-2 Certificate
Exhibit B-3-B-1 Form of Face of Class 3-B-1 Certificate
Exhibit B-3-B-2 Form of Face of Class 3-B-2 Certificate
Exhibit B-3-B-3 Form of Face of Class 3-B-3 Certificate
Exhibit C Form of Reverse of all Certificates
Exhibit D-1 Loan Group 1 Mortgage Loan Schedule
Exhibit D-2 Loan Group 2 Mortgage Loan Schedule
Exhibit D-3 Loan Group 3 Mortgage Loan Schedule
Exhibit D-4 Loan Subgroup 3A Mortgage Loan Schedule
Exhibit D-5 Loan Subgroup 3B Mortgage Loan Schedule
Exhibit E Form of Request for Release
Exhibit F Form of Certification of Establishment of Account
Exhibit G-1 Form of Transferor's Certificate
Exhibit G-2A Form I of Transferee's Certificate
Exhibit G-2B Form II of Transferee's Certificate
Exhibit H Form of Transferee Representation Letter
for ERISA Restricted Certificates
Exhibit I Form of Affidavit Regarding Transfer of Residual
Certificate
Exhibit J List of Recordation States
Exhibit K Form of Initial Certification
Exhibit L Form of Final Certification
Exhibit M Form of Xxxxxxxx-Xxxxx Certification
Exhibit N Form of Trustee's Xxxxxxxx-Xxxxx Reliance Certification
Exhibit O Form of Servicer's Xxxxxxxx-Xxxxx Reliance Certification
Exhibit P Form of Yield Maintenance Agreements
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated March 30, 2005, is
hereby executed by and among BANC OF AMERICA FUNDING CORPORATION, as depositor
(together with its permitted successors and assigns, the "Depositor"),
GREENPOINT MORTGAGE FUNDING, INC., as a servicer (together with its permitted
successors and assigns, "GreenPoint"), BANK OF AMERICA, NATIONAL ASSOCIATION, as
a servicer (together with its permitted successors and assigns, "BANA"),
NATIONAL CITY MORTGAGE CO., as a servicer (together with its permitted
successors and assigns, "National City Mortgage" and, collectively with
GreenPoint and BANA, the "Servicers"), and XXXXX FARGO BANK, N.A., as trustee
(together with its permitted successors and assigns, the "Trustee").
W I T N E S S E T H T H A T:
- - - - - - - - - - - - - -
In consideration of the mutual agreements herein contained, the
Depositor, the Servicers and the Trustee agree as follows:
PRELIMINARY STATEMENT
The Trust Estate for federal income tax purposes will be treated as
four real estate mortgage investment conduits (the "Upper-Tier REMIC," the
"Lower-Tier REMIC," the "Group 3 Upper-Tier REMIC" and the "Group 3 Lower-Tier
REMIC," respectively, and each a "REMIC"). The Certificates (other than the
Class 1-A-R and the Group 3 Certificates) shall constitute "regular interests"
in the Upper-Tier REMIC. The Offered Group 3 Certificates (other than the Class
3-A-3 Certificates) and each Component (exclusive of the right of such
Certificates or Components to receive Cap Carryover Amounts) and the Class 3-CE
Certificates shall constitute "regular interests" in the Group 3 Upper-Tier
REMIC. The Certificates (other than the Class 1-A-R and Class 3-P Certificates)
are the "Regular Certificates." The Uncertificated Lower-Tier Interests shall
constitute the "regular interests" in the Lower-Tier REMIC. The Uncertificated
Group 3 Lower-Tier Interests shall constitute the "regular interests" in the
Group 3 Lower-Tier REMIC. The Class 1-LR Interest shall be the "residual
interest" in the Lower-Tier REMIC. The Class 1-UR Interest shall be the
"residual interest" in the Upper-Tier REMIC. The Class 3-LR Interest shall be
the "residual interest" in the Group 3 Lower-Tier REMIC. The Class 3-UR Interest
shall be the "residual interest" in the Group 3 Upper-Tier REMIC. The portion of
the Trust Estate consisting of the Reserve Account, the Yield Maintenance
Agreements, the Prepayment Premiums Certificates, the rights of the Offered
Group 3 Certificates to receive Cap Carryover Amounts and the obligation of the
Class 3-CE Certificates to pay Cap Carryover Amounts shall not be assets of any
REMIC created hereunder, but rather shall be assets of the Grantor Trust. The
assets of the Grantor Trust, the Certificates, the Uncertificated Lower-Tier
Interests and the Uncertificated Group 3 Lower-Tier Interests will represent the
entire beneficial ownership interest in the Trust. The "latest possible maturity
date" for federal income tax purposes of all interests created hereby will be
the REMIC Certificate Maturity Date.
The following table sets forth characteristics of the Certificates
and Components, together with the minimum denominations and integral multiples
in excess thereof in which the Classes of Certificates shall be issuable:
==================== ================================== ================= ============================== ==========================
Minimum Integral Multiples
Pass-Through Denomination/ in Excess
Classes Initial Class Certificate Balance Rate Percentage Interest of Minimum
-------------------- ---------------------------------- ----------------- ------------------------------ --------------------------
Class 1-A-1 $96,530,000.00 (1) $1,000 $1
Class 1-A-R $100.00 (1) $100 N/A
Class 2-A-1 $120,572,000.00 (2) $1,000 $1
Class 3-A-1 $279,069,000.00 (3) $1,000 $1
Class 3-A-1A $118,000,000.00 (3) $1,000 $1
Class 3-A-1B $32,000,000.00 (3) $1,000 $1
Class 3-A-2 $107,349,000.00 (4) $1,000 $1
Class 3-A-2A $78,000,000.00 (4) $1,000 $1
Class 3-A-2B $22,000,000.00 (4) $1,000 $1
Class 3-A-3 $70,714,000.00 (5) $1,000 $1
Class CB-1 $4,760,000.00 (6) $25,000 $1
Class CB-2 $3,715,000.00 (6) $25,000 $1
Class CB-3 $2,438,000.00 (6) $25,000 $1
Class CB-4 $1,857,000.00 (6) $25,000 $1
Class CB-5 $1,394,000.00 (6) $25,000 $1
Class CB-6 $928,881.00 (6) $25,000 $1
Class 3-M-1 $21,698,000.00 (7) $25,000 $1
Class 3-M-2 $18,598,000.00 (7) $25,000 $1
Class 3-B-1 $12,787,000.00 (7) $25,000 $1
Class 3-B-2 $3,875,000.00 (7) $25,000 $1
Class 3-B-3 $5,424,000.00 (7) $25,000 $1
Class 3-CE (8) (8) N/A N/A
Class 3-P N/A N/A N/A N/A
Pass-Through Integral Multiples In
Components Initial Component Balance Rate Minimum Denomination Excess Of Minimum
-------------------- ---------------------------------- ----------------- ------------------------------ --------------------------
Class 3-A-3A $47,675,000.00 (9) N/A N/A
Class 3-A-3B $23,039,000.00 (10) N/A N/A
(1) For each Distribution Date, interest will accrue on these Certificates at a
per annum rate equal to the Net WAC for the Group 1 Mortgage Loans.
(2) For each Distribution Date, interest will accrue on these Certificates at a
per annum rate equal to the Net WAC for the Group 2 Mortgage Loans.
(3) For each Distribution Date occurring prior to and including the applicable
Termination Date, interest will accrue on these Certificates at a per annum
rate equal to the lesser of (i) the sum of One-Month LIBOR and 0.23%, 0.21%
and 0.31% with respect to the Class 3-A-1, Class 3-A-1A and Class 3-A-1B
Certificates, respectively, and (ii) the Subgroup 3A Cap. On each
Distribution Date following the applicable Termination Date, interest will
accrue on these Certificates at a per annum rate equal to the lesser of (i)
the sum of One-Month LIBOR and 0.46%, 0.42% and 0.62% with respect to the
Class 3-A-1, Class 3-A-1A and Class 3-A-1B Certificates, respectively, and
(ii) the Subgroup 3A Cap.
(4) For each Distribution Date occurring prior to and including the applicable
Termination Date, interest will accrue on these Certificates at a per annum
rate equal to the lesser of (i) the sum of One-Month LIBOR and 0.24%, 0.22%
and 0.31% with respect to the Class 3-A-2, Class 3-A-2A and Class 3-A-2B
Certificates, respectively, and (ii) the Subgroup 3B Cap. On each
Distribution Date following the applicable Termination Date, interest will
accrue on these Certificates at a per annum rate equal to the lesser of (i)
the sum of One-Month LIBOR and 0.48%, 0.44% and 0.62% with respect to the
Class 3-A-2, Class 3-A-2A and Class 3-A-2B Certificates, respectively, and
(ii) the Subgroup 3B Cap.
(5) The Class 3-A-3 Certificates will be deemed for purposes of distributions
of principal and interest to consist of two Components as described in the
table: the Class 3-A-3A Component and the Class 3-A-3B Component (each, a
"Component"). The Components are not severable.
(6) Interest will accrue on these Certificates as of any Distribution Date at a
per annum rate equal to the weighted average (based on the Group
Subordinate Amount for each Loan Group) of the Net WAC for each of the
Group 1 and Group 2 Mortgage Loans.
(7) For each Distribution Date occurring prior to and including the applicable
Termination Date, interest will accrue on these Certificates at a per annum
rate equal to the lesser of (i) the sum of One-Month LIBOR and 0.45%,
0.70%, 1.20%, 2.00% and 2.00% with respect to the Class 3-M-1, Class 3-M-2,
Class 3-B-1, Class 3-B-2 and Class 3-B-3 Certificates, respectively, and
(ii) the Group 3 Cap. On each Distribution Date following the applicable
Termination Date, interest will accrue on these Certificates at a per annum
rate equal to the lesser of (i) the sum of One-Month LIBOR and 0.675%,
1.05%, 1.80%, 3.00% and 3.00% with respect to the Class 3-M-1, Class 3-M-2,
Class 3-B-1, Class 3-B-2 and Class 3-B-3 Certificates, respectively, and
(ii) the Group 3 Cap.
(8) Solely for REMIC purposes, the Class 3-CE Certificates will (i) have an
initial Original Class Certificate Balance equal to the Initial
Overcollateralization Amount and (ii) will bear interest on their Notional
Amount at their Pass-Through Rate.
(9) For each Distribution Date occurring prior to and including the applicable
Termination Date, interest will accrue on this Component at a per annum
rate equal to the lesser of (i) the sum of One-Month LIBOR and 0.30% and
(ii) the Subgroup 3A Cap. On each Distribution Date following the
applicable Termination Date, interest will accrue on this Component at a
per annum rate equal to the lesser of (i) the sum of One-Month LIBOR and
0.60% and (ii) the Subgroup 3A Cap.
(10) For each Distribution Date occurring prior to and including the applicable
Termination Date, interest will accrue on this Component at a per annum
rate equal to the lesser of (i) the sum of One-Month LIBOR and 0.30% and
(ii) the Subgroup 3B Cap. On each Distribution Date following the
applicable Termination Date, interest will accrue on this Component at a
per annum rate equal to the lesser of (i) the sum of One-Month LIBOR and
0.60% and (ii) the Subgroup 3B Cap.
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the meanings specified in this Article:
1933 Act: The Securities Act of 1933, as amended.
60+ Day Delinquent Loan: For each Distribution Date, each Group 3
Mortgage Loan (including each Group 3 Mortgage Loan in foreclosure and each
Group 3 Mortgage Loan for which the Mortgagor has filed for bankruptcy after the
Closing Date) with respect to which any portion of a Monthly Payment is, as of
the Due Date in the prior calendar month, two months or more past due and each
Group 3 Mortgage Loan relating to an REO Property.
3LT Interest Loss Allocation Amount: With respect to any
Distribution Date, an amount equal to (a) the product of (i) 50% of the
aggregate Stated Principal Balance of the Group 3 Mortgage Loans as of the Due
Date in the month of such Distribution Date and (ii) the Group 3 Lower-Tier Rate
for Regular Interest LT1AA minus the Marker Rate, divided by (b) 12.
3LT Marker Allocation Percentage: 50% of any amount payable from or
loss attributable to the Group 3 Mortgage Loans, which shall be allocated to
Regular Interest LT1AA, Regular Interest LT1A1, Regular Xxxxxxxx XX0X0X, Regular
Interest LT1A1B, Regular Interest LT1A2, Regular Xxxxxxxx XX0X0X, Regular
Interest LT1A2B, Regular Xxxxxxxx XX0X0X, Regular Interest LT1A3B, Regular
Interest LT1M1, Regular Interest LT1M2, Regular Interest LT1B1, Regular Interest
LT1B2, Regular Interest LT1B3 and Regular Interest LT1ZZ as provided in Section
5.11(c)(i).
3LT Overcollateralization Target Amount: 0.50% of the Targeted
Overcollateralization Amount.
3LT Overcollateralized Amount: With respect to any date of
determination, (i) 0.50% of the aggregate Uncertificated Principal Balances of
the Group 3 Uncertificated Lower-Tier Interests minus (ii) the aggregate of the
Uncertificated Principal Balances of Regular Interest LT1A1, Regular Xxxxxxxx
XX0X0X, Regular Interest LT1A1B, Regular Interest LT1A2, Regular Xxxxxxxx
XX0X0X, Regular Interest LT1A2B, Regular Xxxxxxxx XX0X0X, Regular Interest
LT1A3B, Regular Interest LT1M1, Regular Interest LT1M2, Regular Interest LT1B1,
Regular Interest LT1B2 and Regular Interest LT1B3, in each case as of such date
of determination.
3LT Principal Loss Allocation Amount: With respect to any
Distribution Date, an amount equal to (a) the product of (i) 50% of the
aggregate Stated Principal Balance of the Group 3 Mortgage Loans as of the Due
Date in the month of such Distribution Date and (ii) 1 minus a fraction, the
numerator of which is two times the aggregate of the Uncertificated Principal
Balances of Regular Interest LT1A1, Regular Xxxxxxxx XX0X0X, Regular Interest
LT1A1B, Regular Interest LT1A2, Regular Xxxxxxxx XX0X0X, Regular Interest
LT1A2B, Regular Xxxxxxxx XX0X0X, Regular Interest LT1A3B, Regular Interest
LT1M1, Regular Interest LT1M2, Regular Interest LT1B1, Regular Interest LT1B2
and Regular Interest LT1B3 and the denominator of which is the aggregate of the
Uncertificated Principal Balances of Regular Interest LT1A1, Regular Xxxxxxxx
XX0X0X, Regular Interest LT1A1B, Regular Interest LT1A2, Regular Xxxxxxxx
XX0X0X, Regular Interest LT1A2B, Regular Xxxxxxxx XX0X0X, Regular Interest
LT1A3B, Regular Interest LT1M1, Regular Interest LT1M2, Regular Interest LT1B1,
Regular Interest LT1B2, Regular Interest LT1B3 and Regular Interest LT1ZZ.
3LT Sub WAC Allocation Percentage: 50% of any amount payable or loss
attributable from the Group 3 Mortgage Loans, which shall be allocated to
Regular Interest LT1SUB, Regular Interest LT1GRP, Regular Interest LT2SUB,
Regular Interest LT2GRP and Regular Interest LT1XX.
Accrued Certificate Interest: For any Distribution Date and each
Class of interest-bearing Certificates (other than the Class 3-A-3
Certificates), one month's interest accrued during the related Interest Accrual
Period at the applicable Pass-Through Rate on the related Class Certificate
Balance less, in the case of the Offered Group 3 Certificates (other than the
Class 3-A-3 Certificates), such Class' Interest Percentage of Relief Act
Shortfalls for such Distribution Date. For any Distribution Date and the Class
3-A-3 Certificates, the sum of the Accrued Component Interest for each
Component.
Accrued Component Interest: For any Distribution Date and each
Component, one month's interest accrued during the related Interest Accrual
Period at the applicable Pass-Through Rate on the related Component Balance less
such Component's Interest Percentage of Relief Act Shortfalls for such
Distribution Date.
Adjusted Pool Amount: With respect to any Distribution Date and
Shifting Interest Loan Group, the Cut-off Date Pool Principal Balance of the
Mortgage Loans in such Loan Group minus the sum of (i) all amounts in respect of
principal received in respect of the Mortgage Loans in such Loan Group
(including, without limitation, amounts received as Monthly Payments, Periodic
Advances, Principal Prepayments, Liquidation Proceeds and Substitution
Adjustment Amounts) and distributed to Holders of the Certificates of the
Related Group on such Distribution Date and all prior Distribution Dates and
(ii) the principal portion of all Realized Losses (other than Debt Service
Reductions) incurred on the Mortgage Loans in such Loan Group from the Cut-off
Date through the end of the month preceding such Distribution Date.
Advance: A Periodic Advance or a Servicing Advance.
Agreement: This Pooling and Servicing Agreement together with all
amendments hereof and supplements hereto.
Amount Held for Future Distribution: As to any Distribution Date and
Loan Group, the total of the amounts held in the Servicer Custodial Accounts at
the close of business on the preceding Determination Date on account of (i)
Principal Prepayments and Liquidation Proceeds received or made on the Mortgage
Loan in such Loan Group in the month of such Distribution Date and (ii) payments
which represent receipt of Monthly Payments on the Mortgage Loans in such Loan
Group in respect of a Due Date or Due Dates subsequent to the related Due Date.
Ancillary Income: All assumption fees, late payment charges and all
other ancillary income and fees (other than Prepayment Premiums) with respect to
the Mortgage Loans.
Applied Realized Loss Amount: With respect to each Distribution
Date, the excess, if any, of the aggregate of (a) the Class Certificate Balances
of the Offered Group 3 Certificates (after taking into account the distribution
of the Group 3 Principal Distribution Amount on such Distribution Date and any
increase in any Class Certificate Balance of the Offered Group 3 Certificates as
a result of Recoveries) over (b) the aggregate Stated Principal Balance of Loan
Group 3 as of the Due Date in the month of such Distribution Date.
Appraised Value: With respect to any Mortgaged Property, either (i)
the lesser of (a) the appraised value determined in an appraisal obtained by the
originator at origination of such Mortgage Loan or, in certain cases, an
automated valuation model or tax assessed value and (b) the sales price for such
property, except that, in the case of Mortgage Loans the proceeds of which were
used to refinance an existing mortgage loan, the Appraised Value of the related
Mortgaged Property is the appraised value thereof determined in an appraisal
obtained at the time of refinancing or, in certain cases, an automated valuation
model or tax assessed value, or (ii) the appraised value determined in an
appraisal made at the request of a Mortgagor subsequent to origination in order
to eliminate the Mortgagor's obligation to keep a Primary Mortgage Insurance
Policy in force.
Assignment of Mortgage: An individual assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form, sufficient under
the laws of the jurisdiction wherein the related Mortgaged Property is located
to give record notice of the sale of the Mortgage.
Available Funds: As to any Distribution Date, the sum of the Group 3
Interest Remittance Amount and the Group 3 Principal Remittance Amount for such
Distribution Date.
Authenticating Agents: As defined in Section 9.10.
BAFC: Banc of America Funding Corporation or its successor in
interest.
BANA: Bank of America, National Association, a national banking
association, or its successor in interest, in its capacity as Servicer of the
BANA Mortgage Loans, or any successor servicer of such Mortgage Loans appointed
as herein provided.
BANA Custodial Account: The separate Eligible Account or Accounts
created and maintained by BANA pursuant to Section 3.09(a).
BANA Mortgage Loans: The Mortgage Loans serviced by BANA and
identified as such on Exhibit D-1, Exhibit X-0, Xxxxxxx X-0, Xxxxxxx X-0 and
Exhibit D-5 of the Mortgage Loan Schedule.
Book-Entry Certificate: All Classes of Certificates other than the
Physical Certificates.
BPP Mortgage Loan: Any Mortgage Loan which includes a Borrowers
Protection Plan(R) addendum to the related Mortgage Note whereby BANA agrees to
cancel (i) certain payments of principal and interest on such Mortgage Loan for
up to twelve months upon the disability or involuntary unemployment of the
Mortgagor or (ii) the outstanding principal balance of the Mortgage Loan upon
the accidental death of the Mortgagor; provided that such Borrowers Protection
Plan(R) has not been terminated in accordance with its terms.
BPP Mortgage Loan Payment: With respect to any BPP Mortgage Loan,
the Monthly Covered Amount or Total Covered Amount, if any, payable by BANA
pursuant to Section 6 of the Mortgage Loan Purchase Agreement.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii)
a day on which banking institutions in the State of North Carolina, the State of
New York, the State of Ohio, the State of California, the State of Minnesota,
the State of Maryland or any state in which the Corporate Trust Office of the
Trustee is located are required or authorized by law or executive order to be
closed.
Calculated Principal Distribution: As defined in Section 5.04(c).
Cap: Any of the Subgroup 3A Cap, the Subgroup 3B Cap or the Group 3
Cap.
Cap Carryover Amount: If on any Distribution Date the Accrued
Certificate Interest for any Class of Offered Group 3 Certificates or the
Accrued Component Interest for any Component is based upon clause (ii) of the
definition of the applicable Cap, the excess of (i) the amount of interest such
Class or Component would have been entitled to receive on such Distribution Date
based on the related Pass-Through Rate (without regard to the applicable Cap),
over (ii) the amount of interest such Class or Component received on such
Distribution Date based on the applicable Cap, together with the unpaid portion
of any such excess from prior Distribution Dates (and interest accrued thereon
at the then applicable Pass-Through Rate on such Class or Component).
CB Crossed Group: Any of Group 1 or Group 2.
CB Crossed Loan Group: Any of Loan Group 1 or Loan Group 2.
CB Crossed Loan Group Senior Percentage: With respect to any
Distribution Date, the percentage, carried six places rounded up, obtained by
dividing the aggregate Class Certificate Balance of the Senior Certificates of
the CB Crossed Groups immediately prior to such Distribution Date by the
aggregate Pool Stated Principal Balance of the CB Crossed Loan Groups with
respect to such Distribution Date.
CB Crossed Loan Group Subordinate Percentage: As to any Distribution
Date, the aggregate Class Certificate Balance of the Class CB Certificates
divided by the aggregate Pool Stated Principal Balance for Loan Group 1 and Loan
Group 2.
Certificate: Any of the Banc of America Funding Corporation Mortgage
Pass-Through Certificates, Series 2005-B that are issued pursuant to this
Agreement.
Certificate Balance: With respect to any Certificate (other than the
Class 3-CE and Class 3-P Certificates) at any date, the maximum dollar amount of
principal to which the Holder thereof is then entitled hereunder, such amount
being equal to the product of the Percentage Interest of such Certificate and
the Class Certificate Balance of the Class of Certificates of which such
Certificate is a part. The Class 3-CE and Class 3-P Certificates have no
Certificate Balance.
Certificate Custodian: Initially, Xxxxx Fargo Bank, N.A.; thereafter
any other Certificate Custodian acceptable to the Depository and selected by the
Trustee.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of a Book-Entry Certificate. With respect to
any Definitive Certificate, the Certificateholder of such Certificate.
Certificate Register: The register maintained pursuant to Section
6.02.
Certificate Registrar: The registrar appointed pursuant to Section
6.02.
Certificateholder: The Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor or the Servicers or any affiliate thereof shall be deemed
not to be outstanding and the Percentage Interest and Voting Rights evidenced
thereby shall not be taken into account in determining whether the requisite
amount of Percentage Interests or Voting Rights, as the case may be, necessary
to effect any such consent has been obtained, unless such entity is the
registered owner of the entire Class of Certificates, provided that the Trustee
shall not be responsible for knowing that any Certificate is registered in the
name of an affiliate of the Depositor or the Servicers unless one of its
Responsible Officers has actual knowledge thereof.
Certification: As defined in Section 3.23.
Class: As to the Certificates, the Class 1-A-1, Class 1-A-R, Class
2-A-1, Class 3-A-1, Class 3-A-1A, Class 3-A-1B, Class 3-A-2, Class 3-A-2A, Class
3-A-2B, Class 3-A-3, Class 3-CE, Class 3-P, Class 3-M-1, Class 3-M-2, Class
3-B-1, Class 3-B-2, Class 3-B-3, Class CB-1, Class CB-2, Class CB-3, Class CB-4,
Class CB-5 and Class CB-6 Certificates, as the case may be.
Class 3-A Certificates: The Class 3-A-1, Class 3-A-1A, Class 3-A-1B,
Class 3-A-2, Class 3-A-2A, Class 3-A-2B and Class 3-A-3 Certificates.
Class 3-A-3 Realized Loss Amortization Amount: As to the Components
and as of any Distribution Date, the lesser of (x) the Unpaid Realized Loss
Amount for the Components as of such Distribution Date and (y) the excess of (i)
the Monthly Excess Cashflow Amount over (ii) the sum of the amounts described in
Section 5.03(c)(i) through (iii) hereof, in each case for such Distribution
Date.
Class 3-A-3A Applied Realized Loss Amount: With respect to any
Distribution Date on and after the Class Certificate Balance of the Class 3-M-1
Certificates has been reduced to zero, and after the Applied Realized Loss
Amount has been allocated pursuant to the first paragraph of Section 5.05, the
excess, if any, of (a) the sum of the aggregate Class Certificate Balance of the
Class 3-A-1, Class 3-A-1A and Class 3-A-1B Certificates and the Component
Balance of the Class 3-A-3A Component (after taking into account the
distribution of the Group 3 Principal Distribution Amount on such Distribution
Date and any increase in the Component Balance of the Class 3-A-3A Component as
a result of Recoveries) over (b) the aggregate Stated Principal Balance of the
Subgroup 3A Mortgage Loans as of the Due Date in the month of such Distribution
Date.
Class 3-A-3B Applied Realized Loss Amount: With respect to any
Distribution Date on and after the Class Certificate Balance of the Class 3-M-1
Certificates has been reduced to zero, and after the Applied Realized Loss
Amount has been allocated pursuant to the first paragraph of Section 5.05, the
excess, if any, of (a) the sum of the aggregate Class Certificate Balance of the
Class 3-A-2, Class 3-A-2A and Class 3-A-2B Certificates and the Component
Balance of the Class 3-A-3B Component (after taking into account the
distribution of the Group 3 Principal Distribution Amount on such Distribution
Date and any increase in the Component Balance of the Class 3-A-3B Component as
a result of Recoveries) over (b) the aggregate Stated Principal Balance of the
Subgroup 3B Mortgage Loans as of the Due Date in the month of such Distribution
Date.
Class 3-B Certificates: The Class 3-B-1, Class 3-B-2 and Class 3-B-3
Certificates.
Class 3-B-1 Principal Distribution Amount: As of any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect, the excess of (x) the sum of (i) the aggregate Class Certificate Balance
of the Class 3-A Certificates (after taking into account the payment of the
Group 3 Senior Principal Distribution Amount on such Distribution Date), (ii)
the Class Certificate Balance of the Class 3-M-1 Certificates (after taking into
account the payment of the Class 3-M-1 Principal Distribution Amount on such
Distribution Date), (iii) the Class Certificate Balance of the Class 3-M-2
Certificates (after taking into account the payment of the Class 3-M-2 Principal
Distribution Amount on such Distribution Date), and (iv) the Class Certificate
Balance of the Class 3-B-1 Certificates immediately prior to such Distribution
Date over (y) the lesser of (A) the product of (i) 96.20% and (ii) the aggregate
Stated Principal Balance of the Group 3 Mortgage Loans as of the Due Date in the
month of such Distribution Date and (B) the amount by which the aggregate Stated
Principal Balance of the Group 3 Mortgage Loans as of the Due Date in the month
of such Distribution Date exceeds the product of (i) 0.50% and (ii) the Cut-off
Date Pool Principal Balance for Loan Group 3.
Class 3-B-1 Realized Loss Amortization Amount: As to the Class 3-B-1
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class 3-B-1 Certificates as of such Distribution
Date and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the
sum of the amounts described in Section 5.03(c)(i) through (xi) hereof, in each
case for such Distribution Date.
Class 3-B-2 Principal Distribution Amount: As of any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect, the excess of (x) the sum of (i) the aggregate Class Certificate Balance
of the Class 3-A Certificates (after taking into account the payment of the
Group 3 Senior Principal Distribution Amount on such Distribution Date), (ii)
the Class Certificate Balance of the Class 3-M-1 Certificates (after taking into
account the payment of the Class 3-M-1 Principal Distribution Amount on such
Distribution Date), (iii) the Class Certificate Balance of the Class 3-M-2
Certificates (after taking into account the payment of the Class 3-M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Class Certificate
Balance of the Class 3-B-1 Certificates (after taking into account the payment
of the Class 3-B-1 Principal Distribution Amount on such Distribution Date), and
(v) the Class Certificate Balance of the Class 3-B-2 Certificates immediately
prior to such Distribution Date over (y) the lesser of (A) the product of (i)
97.20% and (ii) the aggregate Stated Principal Balance of the Group 3 Mortgage
Loans as of the Due Date in the month of such Distribution Date and (B) the
amount by which the aggregate Stated Principal Balance of the Group 3 Mortgage
Loans as of the Due Date in the month of such Distribution Date exceeds the
product of (i) 0.50% and (ii) the Cut-off Date Pool Principal Balance for Loan
Group 3.
Class 3-B-2 Realized Loss Amortization Amount: As to the Class 3-B-2
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class 3-B-2 Certificates as of such Distribution
Date and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the
sum of the amounts described in Section 5.03(c)(i) through (xiv) hereof, in each
case for such Distribution Date.
Class 3-B-3 Principal Distribution Amount: As of any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect, the excess of (x) the sum of (i) the aggregate Class Certificate Balance
of the Class 3-A Certificates (after taking into account the payment of the
Group 3 Senior Principal Distribution Amount on such Distribution Date), (ii)
the Class Certificate Balance of the Class 3-M-1 Certificates (after taking into
account the payment of the Class 3-M-1 Principal Distribution Amount on such
Distribution Date), (iii) the Class Certificate Balance of the Class 3-M-2
Certificates (after taking into account the payment of the Class 3-M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Class Certificate
Balance of the Class 3-B-1 Certificates (after taking into account the payment
of the Class 3-B-1 Principal Distribution Amount on such Distribution Date), (v)
the Class Certificate Balance of the Class 3-B-2 Certificates (after taking into
account the payment of the Class 3-B-2 Principal Distribution Amount on such
Distribution Date) and (vi) the Class Certificate Balance of the Class 3-B-3
Certificates immediately prior to such Distribution Date over (y) the lesser of
(A) the product of (i) 98.60% and (ii) the aggregate Stated Principal Balance of
the Group 3 Mortgage Loans as of the Due Date in the month of such Distribution
Date and (B) the amount by which the aggregate Stated Principal Balance of the
Group 3 Mortgage Loans as of the Due Date in the month of such Distribution Date
exceeds the product of (i) 0.50% and (ii) the Cut-off Date Pool Principal
Balance for Loan Group 3.
Class 3-B-3 Realized Loss Amortization Amount: As to the Class 3-B-3
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class 3-B-3 Certificates as of such Distribution
Date and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the
sum of the amounts described in Section 5.03(c)(i) through (xvii) hereof, in
each case for such Distribution Date.
Class 3-CE Distributable Amount: With respect to any Distribution
Date, the sum of (i) the interest accrued on such Class 3-CE Certificate at its
Pass-Through Rate calculated on its Notional Amount less the amount (without
duplication) of Cap Carryover Amounts paid pursuant to Section 5.03(c)(xix),
(ii) any remaining Overcollateralization Release Amounts, (iii) the aggregate of
amounts remaining in the Reserve Account after the distributions in Section
3.09(f)(i)(A).
Class 3-CE Uncertificated Principal Balance: As of any date of
determination, the Initial Overcollateralization Amount minus the sum of (i) any
Realized Losses allocated thereto and (ii) any amounts distributed (or deemed
distributed) to the Class 3-CE Certificates with respect thereto.
Class 3-M-1 Principal Distribution Amount: As of any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect, the excess of (x) the sum of (i) the aggregate Class Certificate Balance
of the Class 3-A Certificates (after taking into account the payment of the
Group 3 Senior Principal Distribution Amount on such Distribution Date) and (ii)
the Class Certificate Balance of the Class 3-M-1 Certificates immediately prior
to such Distribution Date over (y) the lesser of (A) the product of (i) 88.10%
and (ii) the aggregate Stated Principal Balance of the Group 3 Mortgage Loans as
of the Due Date in the month of such Distribution Date and (B) the amount by
which the aggregate Stated Principal Balance of the Group 3 Mortgage Loans as of
the Due Date in the month of such Distribution Date exceeds the product of (i)
0.50% and (ii) the Cut-off Date Pool Principal Balance for Loan Group 3.
Class 3-M-1 Realized Loss Amortization Amount: As to the Class 3-M-1
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class 3-M-1 Certificates as of such Distribution
Date and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the
sum of the amounts described in Section 5.03(c)(i) through (v) hereof, in each
case for such Distribution Date.
Class 3-M-2 Principal Distribution Amount: As of any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect, the excess of (x) the sum of (i) the aggregate Class Certificate Balance
of the Class 3-A Certificates (after taking into account the payment of the
Group 3 Senior Principal Distribution Amount on such Distribution Date), (ii)
the Class Certificate Balance of the Class 3-M-1 Certificates (after taking into
account the payment of the Class 3-M-1 Principal Distribution Amount on such
Distribution Date) and (iii) the Class Certificate Balance of the Class 3-M-2
Certificates immediately prior to such Distribution Date over (y) the lesser of
(A) the product of (i) 92.90% and (ii) the aggregate Stated Principal Balance of
the Group 3 Mortgage Loans as of the Due Date in the month of such Distribution
Date and (B) the amount by which the aggregate Stated Principal Balance of the
Group 3 Mortgage Loans as of the Due Date in the month of such Distribution Date
exceeds the product of (i) 0.50% and (ii) the Cut-off Date Pool Principal
Balance for Loan Group 3.
Class 3-M-2 Realized Loss Amortization Amount: As to the Class 3-M-2
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class 3-M-2 Certificates as of such Distribution
Date and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the
sum of the amounts described in Section 5.03(c)(i) through (viii) hereof, in
each case for such Distribution Date.
Class A Certificates: The Class 1-A-1, Class 1-A-R, Class 2-A-1,
Class 3-A-1, Class 3-A-1A, Class 3-A-1B, Class 3-A-2, Class 3-A-2A, Class 3-A-2B
and Class 3-A-3 Certificates.
Class B Certificates: The Class CB Certificates and the Class 3-B
Certificates.
Class CB Certificates: The Class CB-1, Class CB-2, Class CB-3, Class
CB-4, Class CB-5 and Class CB-6 Certificates.
Class CB Subordinate Balance Ratio: As of any date of determination,
the ratio between the principal balances of the Class 1-LS Interest and the
Class 2-LS Interest, equal to the ratio among the Group Subordinate Amount of
Loan Group 1 and the Group Subordinate Amount of Loan Group 2.
Class Certificate Balance: Class Certificate Balance means, with
respect to (i) any Class of Shifting Interest Certificates and any date of
determination, and subject to Section 5.04(e), the Initial Class Certificate
Balance of such Class minus (A) the sum of (i) all distributions of principal
made with respect thereto and (ii) all reductions in Class Certificate Balance
previously allocated thereto pursuant to Section 5.04(a) plus (B) all increases
in Class Certificate Balance previously allocated thereto pursuant to Section
5.04(a) and (ii) any Class of Offered Group 3 Certificates (other than the Class
3-A-3 Certificates) and any Distribution Date, and subject to Section 5.03(f),
the Initial Class Certificate Balance of such Class (a) reduced by the sum of
(i) all amounts actually distributed in respect of principal of such Class on
all prior Distribution Dates and (ii) Applied Realized Loss Amounts allocated
thereto for previous Distribution Dates pursuant to Section 5.05 and (b)
increased by any Recoveries allocated to such Class for previous Distribution
Dates. The Class Certificate Balance of the Class 3-A-3 Certificates will equal
the sum of the Component Balances of the Components. The Class 3-CE and Class
3-P Certificates do not have a Class Certificate Balance.
Class Interest Shortfall: For any Distribution Date and each
interest-bearing Class of Shifting Interest Certificates, the amount by which
Accrued Certificate Interest for such Class (as reduced pursuant to Section
5.02(c)) exceeds the amount of interest actually distributed on such Class on
such Distribution Date pursuant to clause (i) of the definition of "Interest
Distribution Amount."
Class M Certificates: The Class 3-M-1 Certificates and the Class
3-M-2 Certificates.
Class M Certificateholders: Collectively, the Holders of the Class M
Certificates.
Class Unpaid Interest Shortfall: As to any Distribution Date and
each interest-bearing Class of Shifting Interest Certificates, the amount by
which the aggregate Class Interest Shortfalls for such Class on prior
Distribution Dates exceeds the amount of interest actually distributed on such
Class on such prior Distribution Dates pursuant to clause (ii) of the definition
of "Interest Distribution Amount."
Closing Date: March 30, 2005.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest: As defined in Section 3.18.
Component Balance: With respect to any Component and any date of
determination, the Initial Component Balance of such Component (a) reduced by
the sum of (i) all amounts actually distributed in respect of principal of such
Component on all prior Distribution Dates and (ii) Class 3-A-3A Applied Realized
Loss Amounts, Class 3-A-3B Applied Realized Loss Amount or Applied Realized Loss
Amounts allocated thereto, as the case may be, for previous Distribution Dates
pursuant to Section 5.05 and (b) increased by any Recoveries allocated to such
Component for previous Distribution Dates.
Conversion Date: The date on which a Mortgage Loan becomes a
Converted Mortgage Loan.
Converted Mortgage Loan: Any Mortgage Loan as to which the related
Mortgagor has exercised its option pursuant to the related Mortgage Note to
convert the adjustable rate of interest on such Mortgage Loan to a fixed rate of
interest.
Co-op Shares: Shares issued by private non-profit housing
corporations.
Corporate Trust Office: The principal corporate trust office of the
Trustee at which at any particular time its corporate trust business with
respect to this Agreement is conducted, which office at the date of the
execution of this instrument is located at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000-0000, Attention: Corporate Trust Services - BAFC 2005-B, and for
certificate transfer purposes is located at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Services - BAFC 2005-B,
or at such other address as the Trustee may designate from time to time by
notice to the Certificateholders, the Depositor, the NIMS Insurer and the
Servicers.
Corresponding Classes or Components: With respect to the Group 3
Lower-Tier REMIC and the Group 3 Upper-Tier REMIC, the following Classes or
Components shall be Corresponding Classes or Components:
Corresponding Group 3 Corresponding Group 3 Upper-Tier
Lower-Tier Interests Classes or Components
--------------------- --------------------------------
LT1A1 Class 3-A-1 Certificates
LT1A1A Class 3-A-1A Certificates
LT1A1B Class 3-A-1B Certificates
LT1A2 Class 3-A-2 Certificates
LT1A2A Class 3-A-2A Certificates
LT1A2B Class 3-A-2B Certificates
LT1A3A Class 3-A-3A Component
LT1A3B Class 3-A-3B Component
LT1M1 Class 3-M-1 Certificates
LT1M2 Class 3-M-2 Certificates
LT1B1 Class 3-B-1 Certificates
LT1B2 Class 3-B-2 Certificates
LT1B3 Class 3-B-3 Certificates
Custodial Agreement: Initially, the Custodial Agreement, dated March
30, 2005, by and among the Depositor, the Servicers, Trustee and the Custodian
and thereafter any custodial agreement entered into pursuant to Section 9.12.
Custodian: Initially, Wachovia Bank, National Association, as
custodian under the Custodial Agreement, and thereafter the Custodian, if any,
hereafter appointed by the Trustee pursuant to Section 9.12. The Custodian may
(but need not) be the Trustee or any Person directly or indirectly controlling
or controlled by or under common control of the Trustee. None of the Depositor,
any Servicer nor any Person directly or indirectly controlling or controlled by
or under common control with any such Person may be appointed Custodian.
Customary Servicing Procedures: With respect to each Servicer,
procedures (including collection procedures) that such Servicer customarily
employs and exercises in servicing and administering mortgage loans for its own
account and which are in accordance with accepted mortgage servicing practices
of prudent lending institutions servicing mortgage loans of the same type as the
Mortgage Loans in the jurisdictions in which the related Mortgaged Properties
are located.
Cut-off Date: March 1, 2005.
Cut-off Date Pool Principal Balance: For each Loan Group or Loan
Subgroup, the aggregate of the Cut-off Date Principal Balances of the Mortgage
Loans in such Loan Group or Loan Subgroup which is $103,240,084.16 for Loan
Group 1, $128,954,896.89 for Loan Group 2, $774,939,272.86 for Loan Group 3,
$522,458,685.42 for Loan Subgroup 3A and $252,480,587.44 for Loan Subgroup 3B.
Cut-off Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof as of the close of business on the Cut-off Date,
reduced by all installments of principal due on or prior thereto whether or not
paid.
Debt Service Reduction: As to any Mortgage Loan and any
Determination Date, the excess of (i) the Monthly Payment due on the related Due
Date under the terms of such Mortgage Loan over (ii) the amount of the monthly
payment of principal and/or interest required to be paid with respect to such
Due Date by the Mortgagor as established by a court of competent jurisdiction
(pursuant to an order which has become final and nonappealable) as a result of a
proceeding initiated by or against the related Mortgagor under the Bankruptcy
Code, as amended from time to time (11 U.S.C.); provided that no such excess
shall be considered a Debt Service Reduction so long as (a) the related Servicer
is pursuing an appeal of the court order giving rise to any such modification
and (b)(1) such Mortgage Loan is not in default with respect to payment due
thereunder in accordance with the terms of such Mortgage Loan as in effect on
the Cut-off Date or (2) Monthly Payments are being advanced by the related
Servicer in accordance with the terms of such Mortgage Loan as in effect on the
Cut-off Date.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that became
the subject of a Debt Service Reduction.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
cured, repurchased or substituted for pursuant to Section 2.02.
Deficient Valuation: As to any Mortgage Loan and any Determination
Date, the excess of (i) the then outstanding indebtedness under such Mortgage
Loan over (ii) the secured valuation thereof established by a court of competent
jurisdiction (pursuant to an order which has become final and nonappealable) as
a result of a proceeding initiated by or against the related Mortgagor under the
Bankruptcy Code, as amended from time to time (11 U.S.C.), pursuant to which
such Mortgagor retained such Mortgaged Property; provided that no such excess
shall be considered a Deficient Valuation so long as (a) the related Servicer is
pursuing an appeal of the court order giving rise to any such modification and
(b)(1) such Mortgage Loan is not in default with respect to payments due
thereunder in accordance with the terms of such Mortgage Loan as in effect on
the Cut-off Date or (2) Monthly Payments are being advanced by the related
Servicer in accordance with the terms of such Mortgage Loan as in effect on the
Cut-off Date.
Deficient Valuation Mortgage Loan: Any Mortgage Loan that became the
subject of a Deficient Valuation.
Definitive Certificates: As defined in Section 6.02(c)(iii).
Depositor: Banc of America Funding Corporation, a Delaware
corporation, or its successor in interest, as depositor of the Trust Estate.
Depository: The Depository Trust Company, the nominee of which is
Cede & Co., as the registered Holder of the Book-Entry Certificates or any
successor thereto appointed in accordance with this Agreement. The Depository
shall at all times be a "clearing corporation" as defined in Section 8-102(3) of
the Uniform Commercial Code of the State of New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date, the 15th day of the
month of the related Distribution Date or, if such 15th day is not a Business
Day, the Business Day immediately preceding such day.
Distribution Account: The Eligible Account created and maintained by
the Trustee pursuant to Section 3.09(b) in the name of the Trustee for the
benefit of the Certificateholders and designated "Xxxxx Fargo Bank, N.A., as
Trustee, in trust for registered holders of Banc of America Funding Corporation
Mortgage Pass-Through Certificates, Series 2005-B." The Distribution Account
shall be deemed to consist of five sub-accounts: one for each Loan Group
(designated as Sub-Account 1, Sub-Account 2 and Sub-Account 3) and two
sub-accounts referred to herein as the Upper-Tier Certificate Sub-Account and
the Group 3 Upper-Tier Certificate Sub-Account, respectively. Funds in the
Distribution Account shall be held in trust for the Holders of the Certificates
for the uses and purposes set forth in this Agreement.
Distribution Date: The 20th day of each month beginning in April
2005 (or, if such day is not a Business Day, the next Business Day).
Due Date: As to any Distribution Date and each Mortgage Loan, the
first day in the calendar month of such Distribution Date.
Eligible Account: Any of (i) an account or accounts maintained with
a federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the debt obligations of such holding company) have the highest
short-term ratings of each Rating Agency at the time any amounts are held on
deposit therein, or (ii) an account or accounts in a depository institution or
trust company in which such accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered to
the Trustee, the NIMS Insurer and to each Rating Agency, the Certificateholders
have a claim with respect to the funds in such account or a perfected first
priority security interest against any collateral (which shall be limited to
Permitted Investments) securing such funds that is superior to claims of any
other depositors or creditors of the depository institution or trust company in
which such account is maintained, or (iii) a trust account or accounts
maintained with the trust department of a federal or state chartered depository
institution or trust company (including the Trustee), acting in its fiduciary
capacity or (iv) any other account acceptable to each Rating Agency. Eligible
Accounts may bear interest and may include, if otherwise qualified under this
definition, accounts maintained with the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificates: Any of the Class CB-4, Class CB-5,
Class CB-6, Class 3-A-3, Class 3-M-1, Class 3-M-2, Class 3-B-1, Class 3-B-2,
Class 3-B-3, Class 3-CE and Class 3-P Certificates.
Escrow Account: As defined in Section 3.10.
Escrow Payments: The amounts constituting taxes, assessments,
Primary Mortgage Insurance Policy premiums, fire and hazard insurance premiums
and other payments as may be required to be escrowed by the Mortgagor with the
mortgagee pursuant to the terms of any Mortgage Note or Mortgage.
Event of Default: As defined in Section 8.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any Liquidation Proceeds of such Mortgage
Loan received in the calendar month in which such Mortgage Loan became a
Liquidated Mortgage Loan, net of any amounts previously reimbursed to the
related Servicer as Nonrecoverable Advance(s) with respect to such Mortgage Loan
pursuant to Section 3.12(a)(iii), exceeds (i) the unpaid principal balance of
such Liquidated Mortgage Loan as of the Due Date in the month in which such
Mortgage Loan became a Liquidated Mortgage Loan plus (ii) accrued interest at
the Mortgage Interest Rate from the Due Date as to which interest was last paid
or for which a Periodic Advance was made (and not reimbursed) up to the Due Date
applicable to the Distribution Date immediately following the calendar month
during which such liquidation occurred.
Extra Principal Distribution Amount: As of any Distribution Date,
the lesser of (x) the Monthly Excess Interest Amount for such Distribution Date
and (y) the Overcollateralization Deficiency for such Distribution Date.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
Final Distribution Date: The Distribution Date on which the final
distribution in respect of the Certificates will be made pursuant to Section
10.01.
Financial Market Service: Bloomberg Financial Service and any other
financial information provider designated by the Depositor by written notice to
the Trustee.
FIRREA: The Financial Institutions Reform, Recovery and Enforcement
Act of 1989, as amended.
FNMA: Xxxxxx Xxx, or any successor thereto.
Form 10-K: As defined in Section 3.23(a).
Fractional Interest: As defined in Section 5.02(d).
Grantor Trust: That portion of the Trust exclusive of the REMICs
consisting of (a) the Prepayment Premiums and the right of the Class 3-P
Certificateholders to receive such Prepayment Premiums, (a) the right of the
Offered Group 3 Certificates to receive Cap Carryover Amounts, (b) each Yield
Maintenance Agreement, the Reserve Account and the beneficial interest of the
Class 3-CE Certificates with respect thereto and (c) the obligation of the Class
3-CE Certificates to pay Cap Carryover Amounts.
GreenPoint: GreenPoint Mortgage Funding, Inc., a New York
corporation, or its successor in interest, in its capacity as Servicer of the
GreenPoint Mortgage Loans, or any successor servicer for such Mortgage Loans
appointed as herein provided.
GreenPoint Custodial Account: The separate Eligible Account or
Accounts created and maintained by GreenPoint pursuant to Section 3.09(a).
GreenPoint Mortgage Loans: The Mortgage Loans serviced by GreenPoint
and identified as such on Exhibit D-1, Exhibit X-0, Xxxxxxx X-0, Xxxxxxx X-0 and
Exhibit D-5 of the Mortgage Loan Schedule.
GreenPoint Servicing Agreement: The Flow Sale and Servicing
Agreement, dated as of September 1, 2004, by and between Bank of America,
National Association and GreenPoint Mortgage Funding, Inc., as amended by that
certain Amendment No. 1, dated as of October 1, 2004, by and between Bank of
America, National Association and GreenPoint Mortgage Funding, Inc.
Gross Margin: As to each Mortgage Loan, the fixed percentage set
forth in the related Mortgage Note and indicated in the Mortgage Loan Schedule
as the "Gross Margin," which percentage is added to the Index on each Rate
Adjustment Date to determine (subject to rounding, the Periodic Cap and the Rate
Ceiling) the Mortgage Interest Rate on such Mortgage Loan until the next Rate
Adjustment Date.
Group: Any of Group 1, Group 2 or Group 3.
Group 1: The Group 1 Senior Certificates.
Group 1 Lower-Tier Rate: For each Distribution Date, a per annum
rate equal to the Net WAC for the Group 1 Mortgage Loans.
Group 1 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-1
hereto.
Group 1 Senior Certificates: Class 1-A-1 and Class 1-A-R
Certificates.
Group 2: The Group 2 Senior Certificates.
Group 2 Lower-Tier Rate: For each Distribution Date, a per annum
rate equal to the Net WAC for the Group 2 Mortgage Loans.
Group 2 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-2
hereto.
Group 2 Senior Certificates: Class 2-A-1 Certificates.
Group 3: The Group 3 Senior Certificates, the Class M Certificates
and the Class 3-B Certificates.
Group 3 Cap: As of any Distribution Date and the Class M and Class
3-B Certificates, a per annum rate equal to the lesser of (i) 11.00% and (ii) a
per annum rate (subject to adjustment based on the actual number of days elapsed
in the related Interest Accrual Period) equal to the weighted average of the
Subgroup 3A Cap and the Subgroup 3B Cap (each calculated without regard to
clause (i) of the definitions thereof), weighted on the basis of the related
Subgroup Subordinate Amount.
Group 3 Certificates: The Group 3 Senior Certificates, the Class M
Certificates, the Class 3-B Certificates, the Class 3-CE Certificates and the
Class 3-P Certificates.
Group 3 Interest Remittance Amount: As of any Distribution Date, the
sum of the Subgroup 3A Interest Remittance Amount and the Subgroup 3B Interest
Remittance Amount for such Distribution Date.
Group 3 Lower-Tier Distribution Amount: As defined in Section
5.11(b).
Group 3 Lower-Tier Rate: With respect to Regular Interest LT1AA,
Regular Interest LT1A1, Regular Xxxxxxxx XX0X0X, Regular Interest LT1A1B,
Regular Interest LT1A2, Regular Xxxxxxxx XX0X0X, Regular Interest LT1A2B,
Regular Xxxxxxxx XX0X0X, Regular Interest LT1A3B, Regular Interest LT1M1,
Regular Interest LT1M2, Regular Interest LT1B1, Regular Interest LT1B2, Regular
Interest LT1B3, Regular Interest LT1ZZ, Regular Interest LT1SUB, Regular
Interest LT2SUB and Regular Interest LT1XX, the Net WAC of the Group 3 Mortgage
Loans. With respect to Regular Interest LT1GRP, the Subgroup 3A Cap. With
respect Regular Interest LT2GRP, the Subgroup 3B Cap.
Group 3 Lower-Tier REMIC: As defined in the Preliminary Statement,
the segregated asset pool, the assets of which consist of the Group 3 Mortgage
Loans, such amounts as shall from time to time be held in respect of the Group 3
Mortgage Loans in the Distribution Account (other than amounts held in respect
of the Group 3 Upper-Tier Certificate Sub-Account), the insurance policies, if
any, relating to a Group 3 Mortgage Loan and the Mortgaged Property that secured
a Group 3 Mortgage Loan and that has been acquired by foreclosure or deed in
lieu of foreclosure.
Group 3 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-3
hereto.
Group 3 Principal Distribution Amount: As to any Distribution Date,
the sum of (i) the Group 3 Principal Remittance Amount minus the
Overcollateralization Release Amount, if any, and (ii) the Extra Principal
Distribution Amount, if any.
Group 3 Principal Remittance Amount: With respect to any
Distribution Date and Group 3 Mortgage Loans, to the extent of funds available
therefor, the sum (less amounts available for reimbursement to the Servicers of
Advances and expenses pursuant to this Agreement and amounts reimbursable or
payable to the Trustee pursuant to this Agreement) of: (i) each payment of
principal on a Mortgage Loan due on the Due Date in the month of such
Distribution Date and received by the Servicers on or prior to the related
Determination Date, and any Advances with respect thereto (or in the case of any
Monthly Covered Amount, the related Remittance Date), (ii) all Principal
Prepayments (other than Total Covered Amounts) received by the applicable
Servicer during the prior calendar month and all Total Covered Amounts received
and deposited in the Servicer Custodial Accounts by the related Remittance Date,
(iii) Insurance Proceeds, net Liquidation Proceeds and Recoveries allocable to
principal actually collected by the applicable Servicer during the prior
calendar month, (iv) with respect to Defective Mortgage Loans repurchased with
respect to the prior calendar month, the portion of the Repurchase Price
allocable to principal, (v) any Substitution Adjustment Amounts paid during the
prior calendar month and (vi) on the Distribution Date on which the Group 3
Mortgage Loans and related REO Property are sold at auction in accordance with
Section 10.01 hereof, that portion of the Termination Price in respect of
principal.
Group 3 Senior Certificates: Class 3-A-1, Class 3-A-1A, Class
3-A-1B, Class 3-A-2, Class 3-A-2A, Class 3-A-2B and Class 3-A-3 Certificates.
Group 3 Senior Principal Distribution Amount: With respect to any
Distribution Date, (i) before the Stepdown Date or as to which a Trigger Event
is in effect, the lesser of (a) the aggregate Class Certificate Balance of the
Class 3-A Certificates immediately prior to such Distribution Date and (b) the
Group 3 Principal Distribution Amount and (ii) on or after the Stepdown Date and
as long as a Trigger Event is not in effect, the excess of (a) the aggregate
Class Certificate Balance of the Class 3-A Certificates immediately prior to
such Distribution Date over (b) the lesser of (x) the product of (i) 82.50% and
(ii) the aggregate Stated Principal Balance of the Group 3 Mortgage Loans as of
the Due Date in the month of such Distribution Date and (y) the amount by which
the aggregate Stated Principal Balance of the Group 3 Mortgage Loans as of the
Due Date in the month of such Distribution Date exceeds the product of (i) 0.50%
and (ii) the Cut-off Date Pool Principal Balance for Loan Group 3.
Group 3 Subordinate Balance Ratio: As of any date of determination,
the ratio between the Uncertificated Principal Balances of Regular Interest
LT1SUB and Regular Interest LT2SUB, equal to the ratio between the Subgroup
Subordinate Amount for Loan Subgroup 3A and the Subgroup Subordinate Amount for
Loan Subgroup 3B.
Group 3 Upper-Tier Certificate Sub-Account: The sub-account of the
Distribution Account designated by the Trustee pursuant to Section 3.09(e).
Group 3 Upper-Tier REMIC: As defined in the Preliminary Statement,
the segregated asset pool, the assets of which consist of the Group 3
Uncertificated Lower-Tier Interests and such amounts as shall from time to time
be deemed to be held in the Group 3 Upper-Tier Certificate Sub-Account.
Group Subordinate Amount: With respect to any Distribution Date and
any Shifting Interest Loan Group, the excess of the Pool Stated Principal
Balance for such Loan Group over the aggregate Class Certificate Balance of the
Senior Certificates of the Related Group immediately prior to such date.
Holder: A Certificateholder.
Indenture: An indenture relating to the issuance of net interest
margin notes secured by the Class 3-CE Certificates and the Class 3-P
Certificates, which may or may not be guaranteed by the NIMS Insurer.
Independent: When used with respect to any specified Person means
such a Person who (i) is in fact independent of the Depositor, the Trustee and
the Servicers, (ii) does not have any direct financial interest or any material
indirect financial interest in the Depositor, the Trustee or the Servicers or in
an affiliate of any of them, and (iii) is not connected with the Depositor, the
Trustee or the Servicers as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions.
Index: As to any Mortgage Loan and Rate Adjustment Date, any of the
One-Year LIBOR Index or the Six-Month LIBOR Index. The Index applicable to each
Mortgage Loan will be indicated on the Mortgage Loan Schedule. In the event that
any such Index is no longer available, the applicable Servicer will select a
substitute Index in accordance with the terms of the related Mortgage Note and
in compliance with federal and state law.
Initial Class Certificate Balance: As to each Class of Certificates,
the Class Certificate Balance set forth in the Preliminary Statement.
Initial Component Balance: As to each Component, the Component
Balance set forth in the Preliminary Statement.
Initial Overcollateralization Amount: $5,425,272.86.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Estate, any related insurance policy, including all riders and
endorsements thereto in effect, including any replacement policy or policies for
any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such Insurance
Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any
other insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: As to any Distribution Date and each Class
of Shifting Interest Certificates, the period from and including the first day
of the previous calendar month to but not including the first day of the
calendar month of the current Distribution Date. As to each Distribution Date
and each Class of Offered Group 3 Certificates, the period from and including
the Distribution Date in the prior calendar month (or in the case of the first
Distribution Date, from the Closing Date) through and including the day prior to
the current Distribution Date. Interest on each Class of Shifting Interest
Certificates will be calculated on the basis of a 360-day year consisting of
twelve 30-day months. Interest on each Class of Offered Group 3 Certificates
will be calculated on the basis of the actual number of days in the related
Interest Accrual Period and a 360-day year.
Interest Carry Forward Amount: For any Class of Offered Group 3
Certificates (other than the Class 3-A-3 Certificates) and the Components and
any Distribution Date, the sum of (a) the excess, if any, of the Accrued
Certificate Interest or Accrued Component Interest, as the case may be, and any
Interest Carry Forward Amount for the prior Distribution Date, over the amount
in respect of interest actually distributed on such Class or Component on such
prior Distribution Date and (b) interest on such excess at the applicable
Pass-Through Rate for the related Interest Accrual Period.
Interest Distribution Amount: For any Distribution Date and each
Class of Shifting Interest Certificates, the sum of (i) the Accrued Certificate
Interest, subject to reduction pursuant to Section 5.02(c) and (ii) any Class
Unpaid Interest Shortfall for such Class.
Interest Percentage: With respect to any Class of Offered Group 3
Certificates (other than the Class 3-A-3 Certificates) or any Component and any
Distribution Date, the ratio (expressed as a decimal carried to six places) of
the Accrued Certificate Interest for such Class or Accrued Component Interest
for such Component to the sum of the Accrued Certificate Interest for all
Classes and Accrued Component Interest for all Components, in each case with
respect to such Distribution Date, without regard to Relief Act Shortfalls.
LIBOR Business Day: Any day on which banks in the London, England
and The City of New York are open and conducting transactions in foreign
currency and exchange.
LIBOR Determination Date: With respect to the Offered Group 3
Certificates and each Interest Accrual Period (after the first Interest Accrual
Period), the second LIBOR Business Day prior to the day on which such Interest
Accrual Period commences.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) that was liquidated in the
calendar month preceding the month of such Distribution Date and as to which the
related Servicer has certified (in accordance with this Agreement) that it has
received all proceeds it expects to receive in connection with the liquidation
of such Mortgage Loan including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or otherwise or
amounts received in connection with any condemnation or partial release of a
Mortgaged Property and any other proceeds received in connection with an REO
Property, less the sum of related unreimbursed Servicing Fees and Advances.
Loan Group: Any of Loan Group 1, Loan Group 2 or Loan Group 3.
Loan Group 1: The Group 1 Mortgage Loans.
Loan Group 2: The Group 2 Mortgage Loans.
Loan Group 3: The Group 3 Mortgage Loans.
Loan Subgroup: Any of Loan Subgroup 3A or Loan Subgroup 3B.
Loan Subgroup 3A: The Subgroup 3A Mortgage Loans.
Loan Subgroup 3B: The Subgroup 3B Mortgage Loans.
Loan-to-Value Ratio: With respect to any Mortgage Loan and any date
of determination, the fraction, expressed as a percentage, the numerator of
which is the outstanding principal balance of the related Mortgage Loan at the
date of determination and the denominator of which is the Appraised Value of the
related Mortgaged Property.
Lower-Tier Distribution Amount: As defined in Section 5.11(a).
Lower-Tier REMIC: As defined in the Preliminary Statement, the
segregated asset pool, the assets of which consist of the Mortgage Loans (other
than the Group 3 Mortgage Loans), such amounts as shall from time to time be
held in the Distribution Account (other than amounts held in respect of the
Upper-Tier Certificate Sub-Account or any amounts held in respect of the Group 3
Mortgage Loans or in the Group 3 Upper-Tier Certificate Sub-Account), the
insurance policies, if any, relating to a Mortgage Loan and the Mortgaged
Property which secured a Mortgage Loan and which has been acquired by
foreclosure or deed in lieu of foreclosure.
Marker Rate: With respect to the Class 3-CE Certificates and any
Distribution Date, a per annum rate equal to two (2) times the weighted average
of the applicable Group 3 Lower-Tier Rates for Regular Interest LT1A1, Regular
Xxxxxxxx XX0X0X, Regular Interest LT1A1B, Regular Interest LT1A2, Regular
Xxxxxxxx XX0X0X, Regular Interest LT1A2B, Regular Xxxxxxxx XX0X0X, Regular
Interest LT1A3B, Regular Interest LT1M1, Regular Interest LT1M2, Regular
Interest LT1B1, Regular Interest LT1B2, Regular Interest LT1B3 and Regular
Interest LT1ZZ, (i) with the rate on each such Uncertificated Group 3 Lower-Tier
Interest (other than Regular Interest LT1ZZ) subject to a cap equal to the
Pass-Through Rate of its Corresponding Class or Component (taking into account
in determining any such Pass-Through Rate the imposition of the applicable Cap
as described in footnote 3, 4, 7, 9 or 10 to the table in the Preliminary
Statement relating to the Certificates) for the purposes of this calculation and
(ii) with the rate on Regular Interest LT1ZZ subject to a cap of zero for the
purpose of this calculation; provided, however, that for this purpose,
calculations of the Group 3 Lower-Tier Rate and the related caps with respect to
each such Uncertificated Group 3 Regular Interest (other than Regular Interest
LT1ZZ) shall be multiplied by a fraction, the numerator of which is the actual
number of days in the Interest Accrual Period and the denominator of which is
30.
Maximum LT1ZZ Uncertificated Accrued Interest Deferral Amount: With
respect to any Distribution Date, the excess of (a) accrued interest at the
Group 3 Lower-Tier Rate applicable to Regular Interest LT1ZZ for such
Distribution Date on a balance equal to the Uncertificated Principal Balance of
Regular Interest LT1ZZ minus the 3LT Overcollateralized Amount, in each case for
such Distribution Date, over (b) Uncertificated Accrued Interest on Regular
Interest LT1A1, Regular Xxxxxxxx XX0X0X, Regular Interest LT1A1B, Regular
Interest LT1A2, Regular Xxxxxxxx XX0X0X, Regular Interest LT1A2B, Regular
Xxxxxxxx XX0X0X, Regular Interest LT1A3B, Regular Interest LT1M1, Regular
Interest LT1M2, Regular Interest LT1B1, Regular Interest LT1B2 and Regular
Interest LT1B3, each subject to a cap equal to the Pass-Through Rate of the
related Corresponding Class for the purpose of this calculation; provided,
however, that for this purpose, calculations of the Group 3 Lower-Tier Rate and
the related caps with respect to Uncertificated Accrued Interest on Regular
Interest LT1A1, Regular Xxxxxxxx XX0X0X, Regular Interest LT1A1B, Regular
Interest LT1A2, Regular Xxxxxxxx XX0X0X, Regular Interest LT1A2B, Regular
Xxxxxxxx XX0X0X, Regular Interest LT1A3B, Regular Interest LT1M1, Regular
Interest LT1M2, Regular Interest LT1B1, Regular Interest LT1B2 and Regular
Interest LT1B3 shall be multiplied by a fraction, the numerator of which is the
actual number of days in the Interest Accrual Period and the denominator of
which is 30.
MERS: As defined in Section 2.01(b)(iii).
Monthly Covered Amount: As defined in the Mortgage Loan Purchase
Agreement.
Monthly Excess Cashflow Amount: The sum of the Monthly Excess
Interest Amount, the Overcollateralization Release Amount and (without
duplication) any portion of the Group 3 Principal Distribution Amount remaining
after principal distributions on the Offered Group 3 Certificates.
Monthly Excess Interest Amount: With respect to each Distribution
Date, the amount, if any, by which the Group 3 Interest Remittance Amount for
such Distribution Date exceeds the aggregate amount distributed on such
Distribution Date to the Group 3 Certificates pursuant to priorities first
through ninth under Section 5.03(a).
Monthly Form 8-K: As defined in Section 3.23(a).
Monthly Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan or the Monthly Covered Amount
representing such scheduled monthly payment.
Moody's: Xxxxx'x Investors Service, Inc., or any successor thereto.
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on a Mortgaged Property securing a Mortgage Note or creating a first
lien on a leasehold interest.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: As to any Mortgage Loan, the per annum rate
of interest at which interest accrues on the principal balance of such Mortgage
Loan, as adjusted from time to time in accordance with the provisions of the
related Mortgage Note, which rate is (a) prior to the first Rate Adjustment Date
for each such Mortgage Loan, the initial Mortgage Interest Rate for such
Mortgage Loan indicated on the Mortgage Loan Schedule and (b) from and after
such Rate Adjustment Date, the sum of the applicable Index, as of the Rate
Adjustment Date applicable to such Due Date, and the Gross Margin, rounded as
set forth in such Mortgage Note, subject to the Periodic Cap and the Rate
Ceiling applicable to such Mortgage Loan at any time during the life of such
Mortgage Loan.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated March 30, 2005, between Bank of America, National Association,
as seller, and the Depositor, as purchaser.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to
time amended by the applicable Servicer to reflect the addition of Substitute
Mortgage Loans and the deletion of Defective Mortgage Loans pursuant to the
provisions of this Agreement) transferred to the Trustee as part of the Trust
Estate and from time to time subject to this Agreement, attached hereto as
Exhibit X-0, Xxxxxxx X-0, Xxxxxxx X-0, Xxxxxxx X-0 and Exhibit D-5 setting forth
the following information with respect to each Mortgage Loan: (i) the Mortgage
Loan identifying number; (ii) a code indicating whether the Mortgaged Property
is owner-occupied; (iii) the property type for each Mortgaged Property; (iv) the
original months to maturity or the remaining months to maturity from the Cut-off
Date; (v) the Loan-to-Value Ratio at origination; (vi) the Mortgage Interest
Rate as of the Cut-off Date; (vii) the date on which the first Monthly Payment
was due on the Mortgage Loan, and, if such date is not the Due Date currently in
effect, such Due Date; (viii) the stated maturity date; (ix) the amount of the
Monthly Payment as of the Cut-off Date; (x) the paid-through date; (xi) the
original principal amount of the Mortgage Loan; (xii) the principal balance of
the Mortgage Loan as of the close of business on the Cut-off Date, after
application of payments of principal due on or before the Cut-off Date, whether
or not collected, and after deduction of any payments collected of scheduled
principal due after the Cut-off Date; (xiii) a code indicating the purpose of
the Mortgage Loan; (xiv) a code indicating the documentation style; (xv) the
Appraised Value; (xvi) the first Rate Adjustment Date; (xvii) the Rate Ceiling;
(xviii) the Periodic Cap; (xix) the Gross Margin; (xx) the Index; (xxi) the
closing date of such Mortgage Loan; (xxii) whether the Mortgagor under such
Mortgage Loan has the option to convert from an adjustable rate of interest to a
fixed rate of interest; (xxiii) whether such Mortgage Loan is subject to a
Prepayment Premium; and (xxiv) whether such Mortgage Loan is a GreenPoint
Mortgage Loan, a BANA Mortgage Loan or a National City Mortgage Mortgage Loan.
With respect to the Mortgage Loans in each Loan Group or Loan Subgroup in the
aggregate, the Mortgage Loan Schedule shall set forth the following information,
as of the Cut-off Date: (i) the number of Mortgage Loans; (ii) the current
aggregate outstanding principal balance of the Mortgage Loans; (iii) the
weighted average Mortgage Interest Rate of the Mortgage Loans; and (iv) the
weighted average months to maturity of the Mortgage Loans.
Mortgage Loans: Such of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 as from time to time are held as a part
of the Trust Estate (including any Substitute Mortgage Loans and REO Property),
the Mortgage Loans originally so held being identified in the Mortgage Loan
Schedule.
Mortgage Note: The originally executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan,
together with all riders thereto and amendments thereof.
Mortgaged Property: The underlying property securing a Mortgage
Loan, which may include Co-op Shares or residential long term leases.
Mortgagor: The obligor on a Mortgage Note.
National City Mortgage: National City Mortgage Co., an Ohio
corporation, or its successor in interest, in its capacity as Servicer of the
National City Mortgage Mortgage Loans, or any successor servicer for such
Mortgage Loans appointed as herein provided.
National City Mortgage Custodial Account: The separate Eligible
Account or Accounts created and maintained by National City Mortgage pursuant to
Section 3.09(a).
National City Mortgage Mortgage Loans: The Mortgage Loans serviced
by National City Mortgage and identified as such on Exhibit D-3, Exhibit D-4 and
Exhibit D-5 of the Mortgage Loan Schedule.
National City Mortgage Servicing Agreement: The Master Seller's
Warranties and Servicing Agreement, dated as of September 1, 2004, by and
between Banc of America Mortgage Capital Corporation and National City Mortgage
Co., as amended by that certain Amendment No. 1, dated as of July 1, 2004, by
and among Banc of America Mortgage Capital Corporation, Bank of America,
National Association and National City Mortgage Co. and that certain Amendment
No. 2, dated as of October 1, 2004, by and between Bank of America, National
Association and National City Mortgage Co.
Net Mortgage Interest Rate: As to any Mortgage Loan and Distribution
Date, such Mortgage Loan's Mortgage Interest Rate thereon on the first day of
the month preceding the month of the related Distribution Date reduced by the
Servicing Fee Rate.
Net WAC: As to any Loan Group or Loan Subgroup and any Distribution
Date, the weighted average of the Net Mortgage Interest Rates of the Mortgage
Loans in such Loan Group or Loan Subgroup (based on Stated Principal Balances of
the Mortgage Loans in such Loan Group or Loan Subgroup on the Due Date in the
month preceding the month of such Distribution Date).
NIMS Insurer: Any insurer that is guaranteeing certain payments
under notes secured by collateral which includes all or a portion of the Class
3-CE and Class 3-P Certificates.
Non-Supported Interest Shortfalls: As to any Distribution Date and
the CB Crossed Loan Groups, the amount, if any, by which the aggregate of
Prepayment Interest Shortfalls for the CB Crossed Loan Groups exceeds the
aggregate Compensating Interest received from the Servicers for the Mortgage
Loans in the CB Crossed Loan Groups for such Distribution Date.
Non-U.S. Person: A Person other than a U.S. Person.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made in respect of a Mortgage Loan which has not been previously
reimbursed and which, in the good faith judgment of the related Servicer or the
Trustee, as applicable, will not or, in the case of a proposed Advance, would
not be ultimately recoverable from the related Mortgagor, related Liquidation
Proceeds, or other recoveries in respect of the related Mortgage Loan.
NYCEMA: A New York Consolidation, Extension and Modification
Agreement.
Offered Certificates: The Senior Certificates and the Class CB-1,
Class CB-2, Class CB-3, Class 3-M-1, Class 3-M-2, Class 3-B-1, Class 3-B-2 and
Class 3-B-3 Certificates.
Offered Group 3 Certificates: The Class 3-A-1, Class 3-A-1A, Class
3-A-1B, Class 3-A-2, Class 3-A-2A, Class 3-A-2B, Class 3-A-3, Class 3-M-1, Class
3-M-2, Class 3-B-1, Class 3-B-2 and Class 3-B-3 Certificates.
Officer's Certificate: A certificate signed by the Chairman of the
Board, Vice Chairman of the Board, President or a Vice President and by the
Treasurer, the Secretary or one of the Assistant Treasurers or Assistant
Secretaries, or any other duly authorized officer of the Depositor and delivered
to the Trustee.
One-Month LIBOR: With respect to the initial Interest Accrual
Period, 2.85% per annum. With respect to each Interest Accrual Period (other
than the initial Interest Accrual Period), the rate determined by the Trustee on
the related LIBOR Determination Date on the basis of the offered rate for
one-month United States dollar deposits, as such rate appears on the Telerate
Page 3750, as of 11:00 a.m. (London time) on such LIBOR Determination Date. If
no such quotations are available on a LIBOR Determination Date, One-Month LIBOR
for the related Interest Accrual Period will be the higher of (i) One-Month
LIBOR for the previous LIBOR Determination Date (or, in the case of the first
LIBOR Determination Date for which the Trustee is required to determine
One-Month LIBOR, 2.85% per annum) or (ii) a per annum rate which the Trustee
determines to be either (a) the arithmetic mean (rounding such arithmetic mean
upwards if necessary to the nearest whole multiple of 1/16%) of the one-month
United States dollar lending rate that New York City banks selected by the
Trustee are quoting on the relevant LIBOR Determination Date to the principal
London offices of at least two leading banks in the London interbank market or
(b) in the event that the Trustee can determine no such arithmetic mean, the
lowest one-month United States dollar lending rate that the New York City banks
selected by the Trustee are quoting on such LIBOR Determination Date to leading
European banks.
One-Year LIBOR Index: A rate per annum that is defined to be the
average of interbank offered rates for one-year U.S. dollar-denominated deposits
in the London market, as published in The Wall Street Journal and most recently
available either (i) as of the first Business Day in the month preceding the
month of the applicable Rate Adjustment Date or (ii) up to the date 45 days
before the applicable Rate Adjustment Date.
Opinion of Counsel: A written opinion of counsel acceptable to the
Trustee who may be counsel for the Depositor or a Servicer, except that any
opinion of counsel relating to the qualification of the Trust Estate as four
separate REMICs or compliance with the REMIC Provisions must be an opinion of
Independent counsel.
Original Class CB Certificate Balance: $15,092,881.00.
Original Fractional Interest: With respect to each of the following
Classes of Subordinate Certificates, the corresponding percentage described
below, as of the Closing Date:
Class CB-1 4.45%
Class CB-2 2.85%
Class CB-3 1.80%
Class CB-4 1.00%
Class CB-5 0.40%
Class CB-6 0.00%
OTS: The Office of Thrift Supervision.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan which
was not the subject of a Principal Prepayment in Full prior to such Due Date,
which did not become a Liquidated Mortgage Loan prior to such Due Date and which
was not purchased from the Trust prior to such Due Date pursuant to Section
2.02, 2.04, 2.09 or Section 3.15(b).
Overcollateralization Amount: As of any Distribution Date, the
excess, if any, of (x) the aggregate Stated Principal Balance of the Group 3
Mortgage Loans as of the Due Date in the month of such Distribution Date over
(y) the aggregate Class Certificate Balance of all Classes of Offered Group 3
Certificates (after taking into account all distributions of principal on such
Distribution Date and the increase of any Class Certificate Balance of a Class
of Offered Group 3 Certificates as a result of Recoveries).
Overcollateralization Deficiency: As of any Distribution Date, the
excess, if any, of (x) the Targeted Overcollateralization Amount for such
Distribution Date over (y) the Overcollateralization Amount for such
Distribution Date, calculated for this purpose after taking into account the
reduction on such Distribution Date of the Class Certificate Balances of all
Classes of Offered Group 3 Certificates resulting from the distribution of the
Group 3 Principal Distribution Amount (but not the Extra Principal Distribution
Amount) on such Distribution Date, but prior to taking into account any Applied
Realized Loss Amounts, Class 3-A-3A Applied Realized Loss Amounts or Class
3-A-3B Applied Realized Loss Amounts on such Distribution Date.
Overcollateralization Release Amount: With respect to any
Distribution Date on or after the Stepdown Date on which a Trigger Event is not
in effect, the lesser of (x) the Group 3 Principal Remittance Amount for such
Distribution Date and (y) the excess, if any, of (i) the Overcollateralization
Amount for such Distribution Date, assuming that 100% of the Group 3 Principal
Remittance Amount is applied as a principal payment on the Offered Group 3
Certificates on such Distribution Date, over (ii) the Targeted
Overcollateralization Amount for such Distribution Date. With respect to any
Distribution Date on which a Trigger Event is in effect, the
Overcollateralization Release Amount will be zero.
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: As to each Class of interest-bearing
Certificates, the per annum rate set forth or described in the Preliminary
Statement.
With respect to the Class 3-CE Certificates and any Distribution
Date, a per annum rate equal to the percentage equivalent of a fraction, the
numerator of which is the sum of the amounts calculated pursuant to clauses (A)
through (O) below, and the denominator of which is the aggregate of the
Uncertificated Principal Balances of Regular Interest LT1AA, Regular Interest
LT1A1, Regular Xxxxxxxx XX0X0X, Regular Interest LT1A1B, Regular Interest LT1A2,
Regular Xxxxxxxx XX0X0X, Regular Interest LT1A2B, Regular Xxxxxxxx XX0X0X,
Regular Interest LT1A3B, Regular Interest LT1M1, Regular Interest LT1M2, Regular
Interest LT1B1, Regular Interest LT1B2, Regular Interest LT1B3 and Regular
Interest LT1ZZ. For purposes of calculating the Pass-Through Rate for the Class
3-CE Certificates, the numerator is equal to the sum of the following
components:
(A) the Group 3 Lower-Tier Rate for Regular Interest LT1AA minus the
Marker Rate, applied to an amount equal to the Uncertificated Principal Balance
of Regular Interest LT1AA;
(B) the Group 3 Lower-Tier Rate for Regular Interest LT1A1 minus the
Marker Rate, applied to an amount equal to the Uncertificated Principal Balance
of Regular Interest LT1A1;
(C) the Group 3 Lower-Tier Rate for Regular Interest LT1A1A minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of Regular Interest LT1A1A;
(D) the Group 3 Lower-Tier Rate for Regular Interest LT1A1B minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of Regular Interest LT1A1B;
(E) the Group 3 Lower-Tier Rate for Regular Interest LT1A2 minus the
Marker Rate, applied to an amount equal to the Uncertificated Principal Balance
of Regular Interest LT1A2;
(F) the Group 3 Lower-Tier Rate for Regular Interest LT1A2A minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of Regular Interest LT1A2A;
(G) the Group 3 Lower-Tier Rate for Regular Interest LT1A2B minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of Regular Interest LT1A2B;
(H) the Group 3 Lower-Tier Rate for Regular Interest LT1A3A minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of Regular Interest LT1A3A;
(I) the Group 3 Lower-Tier Rate for Regular Interest LT1A3B minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of Regular Interest LT1A3B;
(J) the Group 3 Lower-Tier Rate for Regular Interest LT1M1 minus the
Marker Rate, applied to an amount equal to the Uncertificated Principal Balance
of Regular Interest LT1M1;
(K) the Group 3 Lower-Tier Rate for Regular Interest LT1M2 minus the
Marker Rate, applied to an amount equal to the Uncertificated Principal Balance
of Regular Interest LT1M2;
(L) the Group 3 Lower-Tier Rate for Regular Interest LT1B1 minus the
Marker Rate, applied to an amount equal to the Uncertificated Principal Balance
of Regular Interest LT1B1;
(M) the Group 3 Lower-Tier Rate for Regular Interest LT1B2 minus the
Marker Rate, applied to an amount equal to the Uncertificated Principal Balance
of Regular Interest LT1B2;
(N) the Group 3 Lower-Tier Rate for Regular Interest LT1B3 minus the
Marker Rate, applied to an amount equal to the Uncertificated Principal Balance
of Regular Interest LT1B3;
(O) the Group 3 Lower-Tier Rate for Regular Interest LT1ZZ minus the
Marker Rate, applied to an amount equal to the Uncertificated Principal Balance
of Regular Interest LT1ZZ.
Paying Agent: As defined in Section 9.13.
Percentage Interest: As to any Certificate (other than the Class
3-CE and Class 3-P Certificates), the percentage obtained by dividing the
initial Certificate Balance of such Certificate by the Initial Class Certificate
Balance of the Class of which such Certificate is a part. With respect to the
Class 3-CE and Class 3-P Certificates, the portion of the Class evidenced
thereby, expressed as a percentage, as stated on the face of such Certificate;
provided, however, that the sum of all such percentages for each such Class
totals 100%.
Periodic Advance: The payment required to be made by a Servicer with
respect to any Distribution Date pursuant to Section 3.21, the amount of any
such payment being equal to the aggregate of Monthly Payments (net of the
Servicing Fee) on the Mortgage Loans (including any REO Property) serviced by
such Servicer that were due on the related Due Date and not received as of the
close of business on the related Determination Date, less the aggregate amount
of any such delinquent payments that such Servicer has determined would
constitute a Nonrecoverable Advance if advanced.
Periodic Cap: For each Mortgage Loan, the applicable limit on
adjustment of the Mortgage Interest Rate for each Rate Adjustment Date specified
in the applicable Mortgage Note, if any, and designated as such in the Mortgage
Loan Schedule.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by the
United States, FHLMC, FNMA or any agency or instrumentality of the United
States when such obligations are backed by the full faith and credit of
the United States; provided that such obligations of FHLMC or FNMA shall
be limited to senior debt obligations and mortgage participation
certificates other than investments in mortgage-backed or mortgage
participation securities with yields evidencing extreme sensitivity to the
rate of principal payments on the underlying mortgages, which shall not
constitute Permitted Investments hereunder;
(ii) repurchase agreements on obligations specified in clause (i)
maturing not more than one month from the date of acquisition thereof with
a corporation incorporated under the laws of the United States or any
state thereof rated not lower than "P-1" by Xxxxx'x and "A-1" by S&P;
(iii) federal funds, certificates of deposit, demand deposits, time
deposits and bankers' acceptances (which shall each have an original
maturity of not more than 90 days and, in the case of bankers'
acceptances, shall in no event have an original maturity of more than 365
days or a remaining maturity of more than 30 days) denominated in United
States dollars of any U.S. depository institution or trust company
incorporated under the laws of the United States or any state thereof,
rated not lower than "P-1" by Xxxxx'x and "A-1" by S&P;
(iv) commercial paper (having original maturities of not more than
365 days) of any corporation incorporated under the laws of the United
States or any state thereof which is rated not lower than "P-1" by Xxxxx'x
and "A-1" by S&P;
(v) investments in money market funds (including funds of the
Trustee or its affiliates, or funds for which an affiliate of the Trustee
acts as advisor, as well as funds for which the Trustee and its affiliates
may receive compensation) rated either "Aaa" by Xxxxx'x and "AAAm G" by
S&P or otherwise approved in writing by each Rating Agency; and
(vi) other obligations or securities that are acceptable to each
Rating Agency and the NIMS Insurer and, as evidenced by an Opinion of
Counsel obtained by the Trustee and addressed to the Depositor, will not
affect the qualification of the Trust Estate as four separate REMICs;
provided, however, that no instrument shall be a Permitted Investment if it
represents either (a) the right to receive only interest payments with respect
to the underlying debt instrument or (b) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest with respect to such instrument provide a yield to
maturity greater than 120% of the yield to maturity at par of such underlying
obligations.
Permitted Transferee: Any Person other than (i) the United States,
or any State or any political subdivision thereof, or any agency or
instrumentality of any of the foregoing, (ii) a foreign government,
international organization or any agency or instrumentality of either of the
foregoing, (iii) an organization which is exempt from tax imposed by Chapter 1
of the Code (including the tax imposed by Section 511 of the Code on unrelated
business taxable income) (except certain farmers' cooperatives described in Code
Section 521), (iv) rural electric and telephone cooperatives described in Code
Section 1381(a)(2)(C), (v) a Person with respect to whom the income on a
Residual Certificate is allocable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of such Person or
any other U.S. Person, and (vi) any other Person so designated by the Trustee
based on an Opinion of Counsel to the effect that any transfer to such Person
may cause the Trust or any other Holder of a Residual Certificate to incur tax
liability that would not be imposed other than on account of such transfer. The
terms "United States," "State" and "international organization" shall have the
meanings set forth in Code Section 7701 or successor provisions.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Physical Certificates: The Class 1-A-R, Class CB-4, Class CB-5,
Class CB-6, Class 3-CE and Class 3-P Certificates.
Plan: As defined in Section 6.02(e).
Pool Distribution Amount: As to any Distribution Date and Shifting
Interest Loan Group, the excess of (a) the sum of (i) the aggregate of (A) the
interest portion of any Monthly Payment on a Mortgage Loan in such Loan Group
(net of the Servicing Fee), the principal portion of any Monthly Payment on a
Mortgage Loan in such Loan Group due on the Due Date in the calendar month in
which such Distribution Date occurs and which is received prior to the related
Determination Date (or in the case of any Monthly Covered Amount, the related
Remittance Date) and (B) all Periodic Advances made by a Servicer (or the
Trustee, if applicable) in respect of such Loan Group and payments of
Compensating Interest allocable to such Loan Group in respect of such
Distribution Date deposited to the Servicer Custodial Accounts pursuant to
Section 3.09(a)(vii); (ii) all Liquidation Proceeds received on the Mortgage
Loans in such Loan Group during the preceding calendar month and deposited to
the Servicer Custodial Accounts pursuant to Section 3.09(a)(iii); (iii) all
Principal Prepayments (other than Total Covered Amounts) received on the
Mortgage Loans in such Loan Group during the calendar month preceding the month
of such Distribution Date and deposited to the Servicer Custodial Accounts
pursuant to Section 3.09(a)(i) and all Total Covered Amounts received and
deposited in the Servicer Custodial Accounts by the related Remittance Date;
(iv) in connection with Defective Mortgage Loans and Converted Mortgage Loans in
such Loan Group, the aggregate of the Repurchase Prices and Substitution
Adjustment Amounts received during the calendar month preceding the month of
such Distribution Date and deposited to the Servicer Custodial Accounts pursuant
to Section 3.09(a)(vi); (v) any other amounts in the Servicer Custodial Accounts
deposited therein pursuant to Sections 3.09(a)(iv), (v), (viii) and (ix) in
respect of such Distribution Date and such Loan Group; (vi) any Reimbursement
Amount required to be included pursuant to Section 5.02(a) and (vii) any
Recovery in respect of such Distribution Date; over (b) any (i) amounts
permitted to be withdrawn from the Servicer Custodial Accounts pursuant to
clauses (i) through (viii), inclusive, of Section 3.12(a) in respect of such
Loan Group and (ii) amounts permitted to be withdrawn from the Distribution
Account pursuant to clauses (i) and (ii) of Section 3.12(b) in respect of such
Loan Group.
Pool Stated Principal Balance: As to any Distribution Date and
Shifting Interest Loan Group, the aggregate Stated Principal Balance of all
Mortgage Loans in such Loan Group that were Outstanding Mortgage Loans at the
close of business on the Due Date in the month preceding the month in which such
Distribution Date occurs.
Prepayment Interest Shortfall: As to any Distribution Date and each
Mortgage Loan subject to a Principal Prepayment received during the calendar
month preceding such Distribution Date, the amount, if any, by which one month's
interest at the related Mortgage Interest Rate (net of the Servicing Fee Rate)
on such Principal Prepayment exceeds the amount of interest paid in connection
with such Principal Prepayment.
Prepayment Premium: Any prepayment premium, penalty or charge
collected by a Servicer from a Mortgagor in connection with any voluntary
Principal Prepayment in Full pursuant to the terms of the related Mortgage Note
as from time to time held as a part of the Trust Fund, the Prepayment Premiums
so held being identified in the Mortgage Loan Schedule.
Primary Mortgage Insurance Policy: Each policy of primary mortgage
guaranty insurance or any replacement policy therefor with respect to any
Mortgage Loan, in each case issued by an insurer acceptable to FNMA or FHLMC.
Principal Amount: As to any Distribution Date and Loan Group (other
than Loan Group 3), the sum of (i) the sum of (a) the principal portion of each
Monthly Payment due on each Mortgage Loan in such Loan Group on the related Due
Date, (b) the Stated Principal Balance, as of the date of repurchase, of each
Mortgage Loan in such Loan Group that was repurchased by the Depositor, the
Seller or the related Servicer as of such Distribution Date, (c) any
Substitution Adjustment Amount in connection with a Defective Mortgage Loan in
such Loan Group received with respect to such Distribution Date, (d) any
Liquidation Proceeds allocable to recoveries of principal of Mortgage Loans in
such Loan Group that are not yet Liquidated Mortgage Loans received by a
Servicer during the calendar month preceding the month of such Distribution
Date, (e) with respect to each Mortgage Loan in such Loan Group that became a
Liquidated Mortgage Loan during the calendar month preceding the month of such
Distribution Date, the amount of Liquidation Proceeds (excluding Excess
Proceeds) allocable to principal received by a Servicer with respect to such
Mortgage Loan during the calendar month preceding the month of such Distribution
Date and (f) all Principal Prepayments on the Mortgage Loans in such Loan Group
received by a Servicer during the calendar month preceding the month of such
Distribution Date; and (ii) any Recovery related to such Loan Group for such
Distribution Date.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan (other than Liquidation Proceeds) which is received in advance
of its scheduled Due Date and is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment including the principal portion of any
Total Covered Amount.
Principal Prepayment in Full: Any Principal Prepayment of the entire
principal balance of a Mortgage Loan.
Private Certificates: The Class CB-4, Class CB-5, Class CB-6, Class
3-CE and Class 3-P Certificates.
Pro Rata Share: As to any Distribution Date and any Class of Class
CB Certificates that is not a Restricted Class, the portion of the Subordinate
Principal Distribution Amounts allocable to such Class, equal to the product of
the Subordinate Principal Distribution Amounts for such Distribution Date and a
fraction, the numerator of which is the related Class Certificate Balance
thereof and the denominator of which is the aggregate Class Certificate Balance
of the Class CB Certificates that are not Restricted Classes. The Pro Rata Share
of a Restricted Class shall be 0%. The Pro Rata Share of a Class of Class CB
Certificates may be computed for each of clause (i) and clause (ii) of the
definition of "Subordinate Principal Distribution Amount" in the event the
Restricted Classes differ with respect to each clause.
Rate Adjustment Date: As to each Mortgage Loan, the Due Date on
which date an adjustment to the Mortgage Interest Rate of such Mortgage Loan
becomes effective under the related Mortgage Note.
Rate Ceiling: The maximum per annum Mortgage Interest Rate permitted
under the related Mortgage Note and indicated on the Mortgage Loan Schedule.
Rating Agency: Each of Xxxxx'x and S&P. If either such organization
or a successor is no longer in existence, "Rating Agency" shall be such
nationally recognized statistical rating organization, or other comparable
Person, as is designated by the Depositor, notice of which designation shall be
given to the Trustee, the Servicers and the NIMS Insurer. References herein to a
given rating or rating category of a Rating Agency shall mean such rating
category without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an
amount as of the date of such liquidation, equal to (i) the unpaid principal
balance of the Liquidated Mortgage Loan as of the date of such liquidation, plus
(ii) interest at the Net Mortgage Interest Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any, received during
the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Net Mortgage Interest Rate and to principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan that has become the
subject of a Deficient Valuation, if the principal amount due under the related
Mortgage Note has been reduced, the difference between the principal balance of
the Mortgage Loan outstanding immediately prior to such Deficient Valuation and
the principal balance of the Mortgage Loan as reduced by the Deficient
Valuation. With respect to each Mortgage Loan that has become the subject of a
Debt Service Reduction and any Distribution Date, the amount, if any, by which
the principal portion of the related Monthly Payment has been reduced.
Realized Loss Amortization Amount: Any of the Class 3-A-3 Realized
Loss Amortization Amount, the Class 3-M-1 Realized Loss Amortization Amount, the
Class 3-M-2 Realized Loss Amortization Amount, the Class 3-B-1 Realized Loss
Amortization Amount, the Class 3-B-2 Realized Loss Amortization Amount or the
Class 3-B-3 Realized Loss Amortization Amount.
Record Date: With respect to all of the Certificates (other than the
Class 3-A, Class M and Class 3-B Certificates), the last Business Day of the
month immediately preceding the month in which the related Distribution Date
occurs and with respect to the Class 3-A, Class M and Class 3-B Certificates,
the Business Day immediately preceding such Distribution Date; provided,
however, that if any such Class 3-A, Class M and Class 3-B Certificates becomes
a Definitive Certificate, the Record Date for such Certificate shall be the last
Business Day of the month immediately preceding the month in which the related
Distribution Date occurs.
Recovery: As to any Distribution Date and Loan Group or Loan
Subgroup, the sum of all amounts received during the calendar month preceding
the month of such Distribution Date on each Mortgage Loan in such Loan Group or
Loan Subgroup subsequent to such Mortgage Loan being determined to be a
Liquidated Mortgage Loan.
Regular Certificates: As defined in the Preliminary Statement
hereto.
Regular Interest LT1AA: One of the separate non-certificated
beneficial ownership interests in the Group 3 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the Group 3 Lower-Tier REMIC. Regular
Interest LT1AA shall accrue interest at the applicable Group 3 Lower-Tier Rate
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the definition of Uncertificated Group 3
Lower-Tier Interest.
Regular Interest LT1A1: One of the separate non-certificated
beneficial ownership interests in the Group 3 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the Group 3 Lower-Tier REMIC. Regular
Interest LT1A1 shall accrue interest at the applicable Group 3 Lower-Tier Rate
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the definition of Uncertificated Group 3
Lower-Tier Interest.
Regular Interest LT1A1A: One of the separate non-certificated
beneficial ownership interests in the Group 3 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the Group 3 Lower-Tier REMIC. Regular
Xxxxxxxx XX0X0X shall accrue interest at the applicable Group 3 Lower-Tier Rate
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the definition of Uncertificated Group 3
Lower-Tier Interest.
Regular Interest LT1A1B: One of the separate non-certificated
beneficial ownership interests in the Group 3 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the Group 3 Lower-Tier REMIC. Regular
Interest LT1A1B shall accrue interest at the applicable Group 3 Lower-Tier Rate
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the definition of Uncertificated Group 3
Lower-Tier Interest.
Regular Interest LT1A2: One of the separate non-certificated
beneficial ownership interests in the Group 3 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the Group 3 Lower-Tier REMIC. Regular
Interest LT1A2 shall accrue interest at the applicable Group 3 Lower-Tier Rate
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the definition of Uncertificated Group 3
Lower-Tier Interest.
Regular Interest LT1A2A: One of the separate non-certificated
beneficial ownership interests in the Group 3 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the Group 3 Lower-Tier REMIC. Regular
Xxxxxxxx XX0X0X shall accrue interest at the applicable Group 3 Lower-Tier Rate
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the definition of Uncertificated Group 3
Lower-Tier Interest.
Regular Interest LT1A2B: One of the separate non-certificated
beneficial ownership interests in the Group 3 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the Group 3 Lower-Tier REMIC. Regular
Interest LT1A2B shall accrue interest at the applicable Group 3 Lower-Tier Rate
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the definition of Uncertificated Group 3
Lower-Tier Interest.
Regular Interest LT1A3A: One of the separate non-certificated
beneficial ownership interests in the Group 3 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the Group 3 Lower-Tier REMIC. Regular
Xxxxxxxx XX0X0X shall accrue interest at the applicable Group 3 Lower-Tier Rate
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the definition of Uncertificated Group 3
Lower-Tier Interest.
Regular Interest LT1A3B: One of the separate non-certificated
beneficial ownership interests in the Group 3 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the Group 3 Lower-Tier REMIC. Regular
Interest LT1A3B shall accrue interest at the applicable Group 3 Lower-Tier Rate
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the definition of Uncertificated Group 3
Lower-Tier Interest.
Regular Xxxxxxxx XX0X0: One of the separate non-certificated
beneficial ownership interests in the Group 3 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the Group 3 Lower-Tier REMIC. Regular
Interest LT1M1 shall accrue interest at the applicable Group 3 Lower-Tier Rate
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the definition of Uncertificated Group 3
Lower-Tier Interest.
Regular Xxxxxxxx XX0X0: One of the separate non-certificated
beneficial ownership interests in the Group 3 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the Group 3 Lower-Tier REMIC. Regular
Interest LT1M2 shall accrue interest at the applicable Group 3 Lower-Tier Rate
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the definition of Uncertificated Group 3
Lower-Tier Interest.
Regular Interest LT1B1: One of the separate non-certificated
beneficial ownership interests in the Group 3 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the Group 3 Lower-Tier REMIC. Regular
Interest LT1B1 shall accrue interest at the applicable Group 3 Lower-Tier Rate
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the definition of Uncertificated Group 3
Lower-Tier Interest.
Regular Interest LT1B2: One of the separate non-certificated
beneficial ownership interests in the Group 3 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the Group 3 Lower-Tier REMIC. Regular
Interest LT1B2 shall accrue interest at the applicable Group 3 Lower-Tier Rate
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the definition of Uncertificated Group 3
Lower-Tier Interest.
Regular Interest LT1B3: One of the separate non-certificated
beneficial ownership interests in the Group 3 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the Group 3 Lower-Tier REMIC. Regular
Interest LT1B3 shall accrue interest at the applicable Group 3 Lower-Tier Rate
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the definition of Uncertificated Group 3
Lower-Tier Interest.
Regular Interest LT1GRP: One of the separate non-certificated
beneficial ownership interests in the Group 3 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the Group 3 Lower-Tier REMIC. Regular
Interest LT1GRP shall accrue interest at the applicable Group 3 Lower-Tier Rate
in effect from time to time, and shall be entitled to distributions of
principal, subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth in the
definition of Uncertificated Group 3 Lower-Tier Interest.
Regular Interest LT1SUB: One of the separate non-certificated
beneficial ownership interests in the Group 3 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the Group 3 Lower-Tier REMIC. Regular
Interest LT1SUB shall accrue interest at the applicable Group 3 Lower-Tier Rate
in effect from time to time, and shall be entitled to distributions of
principal, subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth in the
definition of Uncertificated Group 3 Lower-Tier Interest.
Regular Interest LT1XX: One of the separate non-certificated
beneficial ownership interests in the Group 3 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the Group 3 Lower-Tier REMIC. Regular
Interest LT1XX shall accrue interest at the applicable Group 3 Lower-Tier Rate
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the definition of Uncertificated Group 3
Lower-Tier Interest.
Regular Interest LT1ZZ: One of the separate non-certificated
beneficial ownership interests in the Group 3 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the Group 3 Lower-Tier REMIC. Regular
Interest LT1ZZ shall accrue interest at the applicable Group 3 Lower-Tier Rate
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
Regular Interest LT2GRP: One of the separate non-certificated
beneficial ownership interests in the Group 3 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the Group 3 Lower-Tier REMIC. Regular
Interest LT2GRP shall accrue interest at the applicable Group 3 Lower-Tier Rate
in effect from time to time, and shall be entitled to distributions of
principal, subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth in the
definition of Uncertificated Group 3 Lower-Tier Interest.
Regular Interest LT2SUB: One of the separate non-certificated
beneficial ownership interests in the Group 3 Lower-Tier REMIC issued hereunder
and designated as a Regular Interest in the Group 3 Lower-Tier REMIC. Regular
Interest LT2SUB shall accrue interest at the applicable Group 3 Lower-Tier Rate
in effect from time to time, and shall be entitled to distributions of
principal, subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth in the
definition of Uncertificated Group 3 Lower-Tier Interest.
Reimbursement Amount: As defined in Section 2.02.
Related Group: For Loan Group 1, Group 1, for Loan Group 2, Group 2,
for Loan Group 3, Group 3 and for the CB Crossed Loan Groups, Group 1 and Group
2 and the Class CB Certificates.
Related Loan Group: For Group 1, Loan Group 1, for Group 2, Loan
Group 2, for Group 3, Loan Group 3, and for the Class CB Certificates, Loan
Group 1 and Loan Group 2.
Related Loan Subgroup: For Subgroup 3A, Loan Subgroup 3A, and for
Subgroup 3B, Loan Subgroup 3B.
Related Subgroup: For Loan Subgroup 3A, Subgroup 3A, and for Loan
Subgroup 3B, Subgroup 3B.
Relief Act: The Servicemembers Civil Relief Act, as it may be
amended from time to time.
Relief Act Reduction: With respect to any Distribution Date, for any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act or comparable state legislation, the amount,
if any, by which (i) interest collectible on such Mortgage Loan for the most
recently ended calendar month is less than (ii) interest accrued pursuant to the
terms of the Mortgage Note on the same principal amount and for the same period
as the interest collectible on such Mortgage Loan for the most recently ended
calendar month.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code. "Each REMIC" or "any REMIC" means each of
the Lower-Tier REMIC, the Upper-Tier REMIC, the Group 3 Lower-Tier REMIC and the
Group 3 Upper-Tier REMIC.
REMIC Certificate Maturity Date: The "latest possible maturity date"
of the Regular Certificates as that term is defined in Section 2.07.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Section 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time, as well as provisions of applicable state laws.
Remittance Date: As to any Distribution Date, by 2:00 p.m. Eastern
time on the 18th calendar day of each month, of if such day is not a Business
Day, the immediately preceding Business Day.
REO Property: A Mortgaged Property acquired by a Servicer on behalf
of the Trust through foreclosure or deed-in-lieu of foreclosure in connection
with a defaulted Mortgage Loan.
Repurchase Price: As to any Defective Mortgage Loan repurchased on
any date pursuant to Section 2.02 or 2.04 or a Converted Mortgage Loan
repurchased on any date pursuant to Section 2.09, an amount equal to (a) in the
case of the Depositor or the Seller, the sum of (i) the unpaid principal balance
thereof and (ii) the unpaid accrued interest thereon at the applicable Mortgage
Interest Rate from the Due Date to which interest was last paid by the Mortgagor
to the first day of the month following the month in which such Mortgage Loan
became eligible to be repurchased and (b) in the case of a Servicer, the sum of
(i) the Stated Principal Balance of the Mortgage Loan, (ii) interest on such
Stated Principal Balance at the Mortgage Interest Rate from the date on which
interest has last been paid and distributed through the last day of the month in
which such repurchase takes place and (iii) any costs and damages incurred by
the Trust in connection with any violation by such repurchased Mortgage Loan of
any predatory or abusive lending law, less (x) amounts received or advanced in
respect of such repurchased Mortgage Loan which are being held in the applicable
Servicer Custodial Account for distribution in the month of repurchase and (y)
if such Servicer is servicing such Mortgage Loan under this Agreement, the
Servicing Fee Rate for such Mortgage Loan.
Request for Release: The Request for Release submitted by a Servicer
to the Trustee or the Custodian on behalf of the Trustee, substantially in the
form of Exhibit E.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to time under this
Agreement in respect of such Mortgage Loan.
Reserve Account: The trust account created and maintained by the
Trustee pursuant to Section 3.09(f) which shall be entitled the "Reserve
Account, Xxxxx Fargo Bank, N.A., as Trustee, in trust for registered Holders of
the Offered Group 3 Certificates of the Banc of America Funding Trust, Series
2005-B" and which must be an Eligible Account. Amounts on deposit in the Reserve
Account shall not be invested. The Reserve Account shall not be an asset of any
REMIC formed under this Agreement.
Residual Certificate: The Class 1-A-R Certificate.
Responsible Officer: Any officer of the Corporate Trust Department
of the Trustee, including any Senior Vice President, any Vice President, any
Assistant Vice President, any Assistant Secretary, any Trust Officer or
Assistant Trust Officer, or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and having responsibility for the administration of this Agreement.
Restricted Classes: As defined in Section 5.02(d).
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor thereto.
Seller: Bank of America, National Association, a national banking
association, or its successor in interest, as seller of the Mortgage Loans under
the Mortgage Loan Purchase Agreement.
Senior Certificates: The Class A Certificates.
Senior Credit Support Depletion Date: As to each of the CB Crossed
Groups, the date on which the aggregate Class Certificate Balance of the Class
CB Certificates is reduced to zero.
Senior Enhancement Percentage: For any Distribution Date, the
percentage obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balance of the Class M and Class 3-B Certificates before taking into
account the distribution of the Group 3 Principal Distribution Amount on such
Distribution Date and (ii) the Overcollateralization Amount as of the prior
Distribution Date by (y) the aggregate Stated Principal Balance of Loan Group 3
as of the due date in the month of such Distribution Date.
Senior Percentage: With respect to any Distribution Date and each
Shifting Interest Loan Group, the percentage, carried to at least six places
rounded up, obtained by dividing the aggregate Class Certificate Balance of the
Senior Certificates of the Related Group immediately prior to such Distribution
Date by the Pool Stated Principal Balance of such Loan Group for such
Distribution Date.
Senior Prepayment Percentage: For each CB Crossed Loan Group during
the seven years beginning on the first Distribution Date, 100%. The Senior
Prepayment Percentage for any Distribution Date and each CB Crossed Loan Group
occurring on or after the seventh year anniversary of the first Distribution
Date will, except as provided herein, be as follows: for any Distribution Date
in the first year thereafter, the Senior Percentage for such CB Crossed Loan
Group plus 70% of the Subordinate Percentage for such CB Crossed Loan Group for
such Distribution Date; for any Distribution Date in the second year thereafter,
the Senior Percentage for such CB Crossed Loan Group plus 60% of the Subordinate
Percentage for such CB Crossed Loan Group for such Distribution Date; for any
Distribution Date in the third year thereafter, the Senior Percentage for such
CB Crossed Loan Group plus 40% of the Subordinate Percentage for such CB Crossed
Loan Group for such Distribution Date; for any Distribution Date in the fourth
year thereafter, the Senior Percentage for such CB Crossed Loan Group plus 20%
of the Subordinate Percentage for such CB Crossed Loan Group for such
Distribution Date; and for any Distribution Date in the fifth or later years
thereafter, the Senior Percentage for such CB Crossed Loan Group for such
Distribution Date. If, however, on any of the foregoing Distribution Dates (i)
the CB Crossed Loan Group Senior Percentage exceeds the initial CB Crossed Loan
Group Senior Percentage, the Senior Prepayment Percentage for the CB Crossed
Loan Groups for such Distribution Date will once again equal 100%, (ii) before
the Distribution Date occurring in April 2008, the CB Crossed Loan Group
Subordinate Percentage for such Distribution Date is greater than or equal to
twice the initial CB Crossed Loan Group Subordinate Percentage, the Senior
Prepayment Percentage each CB Crossed Loan Group for such Distribution Date will
equal the Senior Percentage for such CB Crossed Loan Group plus 50% of the
Subordinate Percentage for such CB Crossed Loan Group or (iii) on or after the
Distribution Date in April 2008, the CB Crossed Loan Group Subordinate
Percentage for such Distribution Date is greater than or equal to twice the
initial CB Crossed Loan Group Subordinate Percentage, the Senior Prepayment
Percentage for each CB Crossed Loan Group for such Distribution Date will equal
the Senior Percentage for such CB Crossed Loan Group. Notwithstanding the
foregoing, no decrease in the share of the applicable Subordinate Percentage
(for calculating the applicable Senior Prepayment Percentage for any Loan Group)
will occur and the Senior Prepayment Percentage for all CB Crossed Loan Groups
will be calculated without regard to clause (ii) or (iii) in the preceding
sentence unless both of the Senior Step Down Conditions are satisfied.
Senior Principal Distribution Amount: As to any Distribution Date
and Loan Group (other than Loan Group 3), the sum of (i) the Senior Percentage
for such Loan Group of the amounts described in clauses (i)(a) through (d) of
the definition of "Principal Amount" for such Distribution Date and Loan Group
and (ii) the Senior Prepayment Percentage for such Loan Group of the amounts
described in clauses (i)(e) and (f) and the amount described in clause (ii) of
the definition of "Principal Amount" for such Distribution Date and Loan Group.
Senior Specified Enhancement Percentage: 17.50%.
Senior Step Down Conditions: As of any Distribution Date and a CB
Crossed Loan Group as to which any decrease in the Senior Prepayment Percentage
for any CB Crossed Loan Group applies, (i) the outstanding principal balance of
all Mortgage Loans in such Loan Groups (including, for this purpose, any
Mortgage Loans in foreclosure, any REO Property and any Mortgage Loan for which
the Mortgagor has filed for bankruptcy after the Closing Date) delinquent 60
days or more (averaged over the preceding six-month period), as a percentage of
the aggregate Class Certificate Balance of the Class CB Certificates, is not
equal to or greater than 50% or (ii) cumulative Realized Losses with respect to
the Mortgage Loans in such Loan Groups as of the applicable Distribution Date do
not exceed the percentages of the Original Class CB Certificate Balance set
forth below:
Percentage of
Original Class CB
Distribution Date Occurring Certificate Balance
----------------------------- -------------------
April 2005 through March 2008 20%
April 2008 through March 2013 30%
April 2013 through March 2014 35%
April 2014 through March 2015 40%
April 2015 through March 2016 45%
April 2016 and thereafter 50%
Servicer: Any of GreenPoint, BANA or National City Mortgage, each in
their capacity as originator or servicer of the Mortgage Loans, or any successor
servicer appointed as herein provided.
Servicer Advance Date: As to any Distribution Date, 11:30 a.m.,
Eastern time, on the Remittance Date.
Servicer Custodial Account: The GreenPoint Custodial Account, the
BANA Custodial Account or the National City Mortgage Custodial Account, as
applicable.
Servicer Custodial Account Reinvestment Income: For each
Distribution Date, all income and gains net of any losses realized since the
preceding Distribution Date from Permitted Investments of funds in the related
Servicer Custodial Account.
Servicers' Certificates: The monthly reports required by Section
4.01.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by any Servicer of its
servicing obligations, including, but not limited to (i) the preservation,
restoration and protection of a Mortgaged Property, (ii) expenses reimbursable
to any Servicer pursuant to Section 3.15 and any enforcement or judicial
proceedings, including foreclosures, (iii) the management and liquidation of any
REO Property and (iv) compliance with the obligations under Section 3.13.
Servicing Agreements: Any of the GreenPoint Servicing Agreement, the
BANA Servicing Agreement and the National City Mortgage Servicing Agreement.
Servicing Compensation: With respect to each Distribution Date, the
sum of (i) the aggregate Servicing Fee for such Distribution Date subject to
reduction as provided in Section 3.18, (ii) any Ancillary Income, (iii) Excess
Proceeds for the preceding month and (iv) the Servicer Custodial Account
Reinvestment Income for such Distribution Date.
Servicing Fee: With respect to each Mortgage Loan and Distribution
Date, the amount of the fee payable to the related Servicer, which shall, for
such Distribution Date, be equal to one-twelfth of the product of the Servicing
Fee Rate with respect to such Mortgage Loan and the Stated Principal Balance of
such Mortgage Loan. Such fee shall be payable monthly, computed on the basis of
the same Stated Principal Balance and period respecting which any related
interest payment on a Mortgage Loan is computed. Each Servicer's right to
receive the Servicing Fee is limited to, and payable solely from, the interest
portion (including recoveries with respect to interest from Liquidation Proceeds
and other proceeds, to the extent permitted by Section 3.12) of related Monthly
Payments collected by such Servicer, or as otherwise provided under Section
3.12.
Servicing Fee Rate: With respect to each Mortgage Loan, as set forth
on the Mortgage Loan Schedule.
Servicing File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit P hereto, and any additional documents required to be
added to the Servicing File pursuant to the Agreement.
Servicing Officer: Any officer of a Servicer involved in, or
responsible for, the administration and servicing of the applicable Mortgage
Loans whose name appears on a list of servicing officers furnished to the
Trustee and the Custodian by such Servicer, as such list may from time to time
be amended.
Servicing Transfer Costs: All reasonable costs and expenses of the
Trustee related to any termination of a Servicer, appointment of a successor
Servicer or the transfer and assumption of servicing by the Trustee (including,
without limitation, (i) all legal costs and expenses and all due diligence costs
and expenses associated with an evaluation of the potential termination of the
Servicer as a result of an event of default by such Servicer and (ii) any costs
or expenses associated with the complete transfer of all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the Trustee to correct any errors or insufficiencies in the servicing data or
otherwise to enable the Trustee to service the Mortgage Loans properly and
effectively).
Shifting Interest Certificates: Any of the Group 1 Certificates and
Group 2 Certificates.
Shifting Interest Group: Any of Group 1 and Group 2.
Shifting Interest Loan Group: Any of Loan Group 1 and Loan Group 2.
Similar Law: As defined in Section 6.02(e).
Six-Month LIBOR Index: A rate per annum that is defined to be the
arithmetic mean of the interbank offered rates for six month U.S.
dollar-denominated deposits in the London market, as published in The Wall
Street Journal and most recently available either (i) as of the first Business
Day in the month preceding the month of the applicable Rate Adjustment Date or
(ii) up to 45 days before the applicable Rate Adjustment Date.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such date as specified in
the amortization schedule at the time relating thereto (before any adjustment to
such amortization schedule by reason of any moratorium or similar waiver or
grace period) after giving effect to any previous partial Principal Prepayments
and Liquidation Proceeds allocable to principal (other than with respect to any
Liquidated Mortgage Loan) and to the payment of principal due on such Due Date
and irrespective of any delinquency in payment by the related Mortgagor, and
after giving effect to any Deficient Valuation.
Stepdown Date: The earlier to occur of (i) the Distribution Date on
which the aggregate Class Certificate Balance of the Group 3 Senior Certificates
is reduced to zero and (ii) the later to occur of (x) the Distribution Date in
April 2008 and (y) the Distribution Date on which the Senior Enhancement
Percentage is greater than or equal to the Senior Specified Enhancement
Percentage.
Sub-Account 1: The sub-account of the Distribution Account
designated by the Trustee pursuant to Section 3.09(e).
Sub-Account 2: The sub-account of the Distribution Account
designated by the Trustee pursuant to Section 3.09(e).
Sub-Account 3: The sub-account of the Distribution Account
designated by the Trustee pursuant to Section 3.09(e).
Subgroup: Any of Subgroup 3A or Subgroup 3B.
Subgroup 3A: The Class 3-A-1, Class 3-A-1A and Class 3-A-1B
Certificates and the Class 3-A-3A Component.
Subgroup 3A Cap: As of any Distribution Date and Subgroup 3A, a per
annum rate equal to the lesser of (i) 11.00% and (ii) the Net WAC for the
Subgroup 3A Mortgage Loans (subject to adjustment based on the actual number of
days elapsed in the related Interest Accrual Period).
Subgroup 3A Interest Remittance Amount: As of any Distribution Date,
the sum, without duplication, of (i) all interest due and collected or advanced
with respect to the payments due on the Subgroup 3A Mortgage Loans on the Due
Date in the calendar month in which such Distribution Date occurs and received
by the Servicers on or prior to the Determination Date for such Distribution
Date (less the Servicing Fees for such Mortgage Loans, amounts available for
reimbursement of Advances pursuant to this Agreement and expenses and
indemnities reimbursable pursuant to this Agreement) or in the case of any
Monthly Covered Amount, the related Remittance Date, (ii) all Compensating
Interest paid by the Servicers for such Distribution Date with respect to the
Subgroup 3A Mortgage Loans, (iii) the portion of any payment in connection with
any Principal Prepayment, substitution, Repurchase Price, Insurance Proceeds or
net Liquidation Proceeds relating to interest with respect to such Mortgage
Loans received during the prior calendar month, (iv) on the Distribution Date on
which the Subgroup 3A Mortgage Loans and related REO Property are sold at
auction in accordance with Section 10.01 hereof, that portion of the Termination
Price in respect of interest and (v) any Reimbursement Amount relating to the
Subgroup 3A Mortgage Loans received during the prior calendar month.
Subgroup 3A Mortgage Loan: Each Mortgage Loan listed on Exhibit D-4
hereto.
Subgroup 3A Principal Percentage: With respect to any Distribution
Date and Subgroup 3A, the percentage equivalent of a fraction, the numerator of
which is the portion of the Group 3 Principal Remittance Amount for such
Distribution Date allocable to the Subgroup 3A Mortgage Loans and the
denominator of which is the Group 3 Principal Remittance Amount for such
Distribution Date.
Subgroup 3B: The Class 3-A-2, Class 3-A-2A and Class 3-A-2B
Certificates and the Class 3-A-3B Component.
Subgroup 3B Cap: As of any Distribution Date and Subgroup 3B, a per
annum rate equal to the lesser of (i) 11.00% and (ii) the Net WAC for the
Subgroup 3B Mortgage Loans (subject to adjustment based on the actual number of
days elapsed in the related Interest Accrual Period).
Subgroup 3B Interest Remittance Amount: As of any Distribution Date,
the sum, without duplication, of (i) all interest due and collected or advanced
with respect to the payments due on the Subgroup 3B Mortgage Loans on the Due
Date in the calendar month in which such Distribution Date occurs and received
by the Servicers on or prior to the Determination Date for such Distribution
Date (less the Servicing Fees for such Mortgage Loans, amounts available for
reimbursement of Advances pursuant to this Agreement and expenses and
indemnities reimbursable pursuant to this Agreement) or in the case of any
Monthly Covered Amount, the related Remittance Date, (ii) all Compensating
Interest paid by the Servicers for such Distribution Date with respect to the
Subgroup 3B Mortgage Loans, (iii) the portion of any payment in connection with
any Principal Prepayment, substitution, Repurchase Price, Insurance Proceeds or
net Liquidation Proceeds relating to interest with respect to such Mortgage
Loans received during the prior calendar month, (iv) on the Distribution Date on
which the Subgroup 3B Mortgage Loans and related REO Property are sold at
auction in accordance with Section 10.01 hereof, that portion of the Termination
Price in respect of interest and (v) any Reimbursement Amount relating to the
Subgroup 3B Mortgage Loans received during the prior calendar month.
Subgroup 3B Mortgage Loan: Each Mortgage Loan listed on Exhibit D-5
hereto.
Subgroup 3B Principal Percentage: With respect to any Distribution
Date and Subgroup 3B, the percentage equivalent of a fraction, the numerator of
which is the portion of the Group 3 Principal Remittance Amount for such
Distribution Date allocable to the Subgroup 3B Mortgage Loans and the
denominator of which is the Group 3 Principal Remittance Amount for such
Distribution Date.
Subgroup Subordinate Amount: With respect to any Distribution Date
and any Loan Subgroup, the excess of the aggregate Stated Principal Balance of
the Mortgage Loans in such Loan Subgroup over the sum of the Class Certificate
Balance of the Senior Certificates of the Related Subgroup and the Component
Balance of the Component of the Related Subgroup immediately prior to such date.
Subordinate Certificates: The Class CB Certificates, the Class M
Certificates, the Class 3-B Certificates, the Class 3-CE Certificates and the
Class 3-P Certificates.
Subordinate Percentage: As of any Distribution Date and Loan Group,
100% minus the Senior Percentage for such Loan Group for such Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date and
Loan Group, 100% minus the Senior Prepayment Percentage for such Loan Group and
such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and Shifting Interest Loan Group, an amount equal to the sum
of (i) the Subordinate Percentage for such Loan Group of the amounts described
in clauses (i)(a) through (d) of the definition of "Principal Amount" for such
Distribution Date and Loan Group and (ii) the Subordinate Prepayment Percentage
of the amounts described in clauses (i)(e) and (f) and the amount described in
clause (ii) of the definition of "Principal Amount" for such Distribution Date
and Loan Group.
Subservicer: Any Person with which a Servicer has entered into a
Subservicing Agreement and which satisfies the requirements set forth therein.
Subservicing Agreement: Any subservicing agreement (which, in the
event the Subservicer is an affiliate of a Servicer, need not be in writing)
between a Servicer and any Subservicer relating to servicing and/or
administration of certain Mortgage Loans as provided in Section 3.02.
Substitute Mortgage Loan: A Mortgage Loan substituted for a
Defective Mortgage Loan which must, on the date of such substitution (i) have a
Stated Principal Balance, after deduction of the principal portion of the
Monthly Payment due in the month of substitution, not in excess of the Stated
Principal Balance of the Defective Mortgage Loan; (ii) have a Net Mortgage
Interest Rate not less than and not more than 2% greater than that of the
Defective Mortgage Loan; (iii) be of the same type as the Defective Mortgage
Loan; (iv) have a Loan-to-Value Ratio not higher than that of the Defective
Mortgage Loan; (v) have a Gross Margin not less than that of the Defective
Mortgage Loan; (vi) have a credit grade not lower in quality than that of the
Defective Mortgage Loan; (vii) have a Periodic Cap and Rate Ceiling equal to
that of the Defective Mortgage Loan; (viii) have the same Index and frequency of
Mortgage Interest Rate Adjustment as the Defective Mortgage Loan; (ix) have a
remaining term to maturity not greater than (and not more than one year less
than) that of the Defective Mortgage Loan; and (x) comply with each Mortgage
Loan representation and warranty set forth in the applicable Servicing
Agreement, the Mortgage Loan Purchase Agreement and this Agreement relating to
the Defective Mortgage Loan. More than one Substitute Mortgage Loan may be
substituted for a Defective Mortgage Loan if such Substitute Mortgage Loans meet
the foregoing attributes in the aggregate.
Substitution Adjustment Amount: As defined in Section 2.02.
Targeted Overcollateralization Amount: As of any Distribution Date,
(x) prior to the Stepdown Date, 0.70% of the Cut-off Date Pool Principal Balance
of the Group 3 Mortgage Loans and (y) on and after the Stepdown Date, (i) if a
Trigger Event has not occurred, the greater of (A) 1.40% of the aggregate Stated
Principal Balance of the Group 3 Mortgage Loans as of Due Date in the month of
such Distribution Date and (B) 0.50% of the Cut-off Date Pool Principal Balance
for the Group 3 Mortgage Loans and (ii) if a Trigger Event has occurred, the
Targeted Overcollateralization Amount for the immediately preceding Distribution
Date.
Tax Matters Person: Any person designated as "tax matters person" in
accordance with Section 5.06 and the manner provided under Treasury Regulations
Section 1.860F-4(d) and Treasury Regulations Section 301.6231(a)(7)-1.
Telerate Page 3750: The display page currently so designated on the
Moneyline Telerate Service (or such other page as may replace the Telerate Page
3750 page on that service for the purpose of displaying London interbank offered
rates of major banks).
Termination Date: As defined in Section 10.01 hereof.
Termination Price: As defined in Section 10.01 hereof.
Total Covered Amount: As defined in the Mortgage Loan Purchase
Agreement.
Trigger Event: With respect to any Distribution Date, if (i) the
three-month rolling average of 60+ Day Delinquent Loans equals or exceeds 40% of
the Senior Enhancement Percentage or (ii) the aggregate amount of Realized
Losses incurred on the Group 3 Mortgage Loans since the Cut-off Date through the
Due Date in the month of such Distribution Date (reduced by the aggregate amount
of Recoveries received since the Cut-off Date through the Due Date in the month
of such Distribution Date on the Group 3 Mortgage Loans) divided by the Cut-off
Date Pool Principal Balance for Loan Group 3 exceeds the applicable percentages
set forth below with respect to such Distribution Date:
Distribution Date Occurring In Percentage
------------------------------ ----------
April 2008 through March 2009 0.95%
April 2009 through March 2010 1.45%
April 2010 through March 2011 1.85%
April 2011 and thereafter 1.90%
Treasury Regulations: The final and temporary regulations
promulgated under the Code by the U.S. Department of the Treasury.
Trust: The trust created by this Agreement, which shall be named
"Banc of America Funding 2005-B Trust."
Trust Estate: The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered hereunder,
with respect to a portion of which four REMIC elections are to be made, such
entire Trust Estate consisting of: (i) such Mortgage Loans as from time to time
are subject to this Agreement, together with the Mortgage Files relating
thereto, and together with all collections thereon and proceeds thereof, (ii)
any REO Property, together with all collections thereon and proceeds thereof,
(iii) the Trustee's rights with respect to the Mortgage Loans under all
insurance policies required to be maintained pursuant to this Agreement and any
proceeds thereof, (iv) the Depositor's rights under the Servicing Agreements and
the Mortgage Loan Purchase Agreement (including any security interest created
thereby), (v) the Trustee's rights under the Yield Maintenance Agreements, (vi)
the right to receive any BPP Mortgage Loan Payment and (vii) the Servicer
Custodial Accounts, the Distribution Account and the Reserve Account and such
assets that are deposited therein from time to time and any investments thereof,
together with any and all income, proceeds and payments with respect thereto.
Trustee: Xxxxx Fargo Bank, N.A., and its successors-in-interest and,
if a successor trustee is appointed hereunder, such successor, as trustee.
Uncertificated Accrued Interest: With respect to each Uncertificated
Group 3 Lower-Tier Interest on each Distribution Date, an amount equal to one
month's interest at the applicable Group 3 Lower-Tier Rate on the Uncertificated
Principal Balance of such Regular Interest. In each case, Uncertificated Accrued
Interest will be reduced by any Prepayment Interest Shortfalls and Relief Act
Interest Shortfalls (allocated to such Regular Interests based on their
respective entitlements to interest irrespective of any Prepayment Interest
Shortfalls and Relief Act Interest Shortfalls for such Distribution Date).
Uncertificated Group 3 Lower-Tier Interest: A regular interest in
the Group 3 Lower-Tier REMIC which is held as an asset of the Group 3 Upper-Tier
REMIC and is entitled to monthly distributions as provided in Section 5.11
hereof. Any of the Regular Interest LT1AA, Regular Interest LT1A1, Regular
Xxxxxxxx XX0X0X, Regular Interest LT1A1B, Regular Interest LT1A2, Regular
Xxxxxxxx XX0X0X, Regular Interest LT1A2B, Regular Xxxxxxxx XX0X0X, Regular
Interest LT1A3B, Regular Interest LT1M1, Regular Interest LT1M2, Regular
Interest LT1B1, Regular Interest LT1B2, Regular Interest LT1B3, Regular Interest
LT1GRP, Regular Interest LT1SUB, Regular Interest LT1XX, Regular Interest LT1ZZ,
Regular Interest LT2GRP and Regular Interest LT2SUB are Uncertificated Group 3
Lower-Tier Interests. The Uncertificated Group 3 Lower-Tier Interests shall have
the following original Uncertificated Principal Balances as of the Closing Date:
Designation Uncertificated Principal Balance
----------- --------------------------------
LT1AA $379,720,243.70
LT1A1 $1,395,345.00
LT1A1A $590,000.00
LT1A1B $160,000.00
LT1A3A $238,375.00
LT1A2 $536,745.00
LT1A2A $390,000.00
LT1A2B $110,000.00
LT1A3B $115,195.00
LT1M1 $108,490.00
LT1M2 $92,990.00
LT1B1 $63,935.00
LT1B2 $19,375.00
LT1B3 $27,120.00
LT1ZZ $3,901,822.73
LT1SUB $28,171.47
LT1GRP $52,245.87
LT2SUB $2,209.26
LT2GRP $25,248.06
LT1XX $387,361,761.78
Uncertificated Lower-Tier Interest: A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and is
entitled to monthly distributions as provided in Section 5.11 hereof. Any of the
Class 1-L Interest, Class 1-LS Interest, Class 2-L Interest and Class 2-LS
Interest are Uncertificated Lower-Tier Interests.
Uncertificated Principal Balance: The amount of any Uncertificated
Group 3 Lower-Tier Interest outstanding as of any date of determination. As of
the Closing Date, the Uncertificated Balance of each Uncertificated Group 3
Lower-Tier Interest shall equal the amount set forth in the definition of
"Uncertificated Group 3 Lower-Tier Interest" hereto as its initial
uncertificated balance. On each Distribution Date, the Uncertificated Principal
Balance of each Uncertificated Group 3 Lower-Tier Regular Interest shall be
reduced by all distributions of principal made on such Uncertificated Group 3
Lower-Tier Regular Interest on such Distribution Date pursuant to Section 5.11
and, if and to the extent necessary and appropriate, shall be further reduced on
such Distribution Date by Realized Losses as provided in Section 5.11(c) and
shall be increased by all Recoveries allocated to such Group 3 Lower-Tier
Regular Interest on such Distribution Date pursuant to Section 5.11(d). The
Uncertificated Balance of Regular Interest LT1ZZ shall be increased by interest
deferrals as provided in Section 5.11(b)(i). The Uncertificated Principal
Balance of each Uncertificated Group 3 Lower-Tier Regular Interest shall never
be less than zero.
Unpaid Realized Loss Amount: For the Class 3-A-3A Component, the
Class 3-A-3B Component, the Class 3-M-1 Certificates, the Class 3-M-2
Certificates, the Class 3-B-1 Certificates, the Class 3-B-2 Certificates and the
Class 3-B-3 Certificates and as to any Distribution Date, the excess of (x) the
aggregate Applied Realized Loss Amounts, Class 3-A-3A Applied Realized Loss
Amounts or Class 3-A-3B Applied Realized Loss Amounts allocated to such Class or
Component for all prior Distribution Dates over (y) the sum of (a) the
cumulative amount of any Recoveries allocated to such Class or Component and (b)
the aggregate Realized Loss Amortization Amounts with respect to such Class or
Component for all prior Distribution Dates.
Unscheduled Principal Payments: As to any Distribution Date and Loan
Group (other than Loan Group 3), the sum of (i) with respect to each Mortgage
Loan in such Loan Group that became a Liquidated Mortgage Loan during the
calendar month preceding the month of such Distribution Date, the amount of
Liquidation Proceeds (excluding Excess Proceeds) allocable to principal received
by a Servicer with respect to such Mortgage Loan during the calendar month
preceding the month of such Distribution Date and (b) all Principal Prepayments
on the Mortgage Loans in such Loan Group received by a Servicer during the
calendar month preceding the month of such Distribution Date.
Upper-Tier Certificate Sub-Account: The sub-account of the
Distribution Account designated by the Trustee pursuant to Section 3.09(e).
Upper-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Uncertificated Lower-Tier Interests and such
amounts as shall from time to time be deemed to be held in the Upper-Tier
Certificate Sub-Account.
U.S. Person: A citizen or resident of the United States, a
corporation or partnership (unless, in the case of a partnership, Treasury
Regulations are adopted that provide otherwise) created or organized in or under
the laws of the United States, any state thereof or the District of Columbia,
including an entity treated as a corporation or partnership for federal income
tax purposes, an estate whose income is subject to United States federal income
tax regardless of its source, or a trust if a court within the United States is
able to exercise primary supervision over the administration of such trust, and
one or more such U.S. Persons have the authority to control all substantial
decisions of such trust (or, to the extent provided in applicable Treasury
Regulations, certain trusts in existence on August 20, 1996 which are eligible
to elect to be treated as U.S. Persons).
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Holders of
the Class 3-CE Certificates, (b) 1% of all Voting Rights shall be allocated to
the Holders of the Class 3-P Certificates, (c) 1% of all Voting Rights shall be
allocated to the Holder of the Residual Certificate and (d) the remaining Voting
Rights shall be allocated among Holders of the remaining Classes of Certificates
in proportion to the Certificate Balances of their respective Certificates on
such date.
Yield Maintenance Agreements: Any of the eleven yield maintenance
agreements between the Trustee, on behalf of the Trust, and the Yield
Maintenance Agreement Provider substantially in the form attached hereto as
Exhibit P. The Yield Maintenance Agreements shall not be an asset of any REMIC
formed under this Agreement.
Yield Maintenance Agreement Payment: For each Distribution Date from
May 2005 through the Distribution Date in May 2010, the amount the Yield
Maintenance Agreement Provider is obligated to pay to the Trustee two Business
Days prior to such Distribution Date for deposit into the Reserve Account equal
to the product of (a) the excess of the lesser of (i) One-Month LIBOR and (ii)
11.00% over the applicable strike rate for such Distribution Date, as set forth
on the applicable table in Exhibit P hereto, (b) the cap notional amount for
such Distribution Date as set forth on the table in Exhibit P hereto and (c) a
fraction, the numerator of which is the actual number of days elapsed since the
previous Distribution Date to but excluding the current Distribution Date and
the denominator of which is 360.
Yield Maintenance Agreement Provider: Bank of America, National
Association and any successor thereto.
Section 1.02 Calculations. All dollar amounts calculated hereunder
shall be rounded to the nearest xxxxx with one-half of one xxxxx being rounded
down.
Section 1.03 Rights of the NIMS Insurer. Each of the rights of the
NIMS Insurer set forth in this Agreement shall exist so long as (i) the NIMS
Insurer has undertaken to guarantee certain payments of notes issued pursuant to
the Indenture and (ii) any series of notes issued pursuant to the Indenture
remains outstanding or the NIMS Insurer is owed amounts in respect of its
guarantee of payment on such notes; provided, however, the NIMS Insurer shall
not have any rights hereunder (except pursuant to Section 11.01 in the case of
clause (ii) below) during the period of time, if any, that (i) the NIMS Insurer
has not undertaken to guarantee certain payments of notes issued pursuant to the
Indenture or (ii) any default has occurred and is continuing under the insurance
policy issued by the NIMS Insurer with respect to such notes.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee on behalf of the Trust
for the benefit of the Certificateholders, without recourse, all the right,
title and interest of the Depositor in and to the Mortgage Loans, including all
interest and principal received on or with respect to the Mortgage Loans (other
than payments of principal and interest due and payable on the Mortgage Loans on
or before the Cut-off Date), the Depositor's rights under the Mortgage Loan
Purchase Agreement, including the rights of the Depositor as assignee of the
Seller with respect to the Seller's rights under the Servicing Agreements. The
foregoing sale, transfer, assignment and set over does not and is not intended
to result in a creation of an assumption by the Trustee of any obligation of the
Depositor or any other Person in connection with the Mortgage Loans or any
agreement or instrument relating thereto, except as specifically set forth
herein. In addition, the Depositor, concurrently with the execution and delivery
hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the
Trustee on behalf of the Trust for the benefit of the Certificateholders,
without recourse, the Depositor's rights to receive any BPP Mortgage Loan
Payment.
(b) In connection with such transfer and assignment, the Depositor
has delivered or caused to be delivered to the Trustee, or the Custodian on
behalf of the Trustee, for the benefit of the Certificateholders, the following
documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed by manual or facsimile
signature in the following form: "Pay to the order of Xxxxx Fargo Bank,
N.A., as trustee for holders of Banc of America Funding Corporation
Mortgage Pass-Through Certificates, Series 2005-B, without recourse," with
all necessary intervening endorsements showing a complete chain of
endorsement from the originator to the Trustee (each such endorsement
being sufficient to transfer all right, title and interest of the party so
endorsing, as noteholder or assignee thereof, in and to that Mortgage
Note) and, in the case of any Mortgage Loan originated in the State of New
York documented by a NYCEMA, the NYCEMA, the new Mortgage Note, if
applicable, the consolidated Mortgage Note and the consolidated Mortgage;
(ii) except as provided below, the original recorded Mortgage with
evidence of a recording thereon, or if any such Mortgage has not been
returned from the applicable recording office or has been lost, or if such
public recording office retains the original recorded Mortgage, a copy of
such Mortgage certified by the applicable Servicer (which may be part of a
blanket certification) as being a true and correct copy of the Mortgage;
(iii) subject to the provisos at the end of this paragraph, a duly
executed Assignment of Mortgage to "Xxxxx Fargo Bank, N.A., as trustee for
the holders of Banc of America Funding Corporation Mortgage Pass-Through
Certificates, Series 2005-B" (which may be included in a blanket
assignment or assignments), together with, except as provided below,
originals of all interim recorded assignments of such mortgage or a copy
of such interim assignment certified by the applicable Servicer (which may
be part of a blanket certification) as being a true and complete copy of
the original recorded intervening assignments of Mortgage (each such
assignment, when duly and validly completed, to be in recordable form and
sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which the assignment relates); provided
that, if the related Mortgage has not been returned from the applicable
public recording office, such Assignment of Mortgage may exclude the
information to be provided by the recording office; and provided, further,
if the related Mortgage has been recorded in the name of Mortgage
Electronic Registration Systems, Inc. ("MERS") or its designee, no
Assignment of Mortgage in favor of the Trustee will be required to be
prepared or delivered and instead, the applicable Servicer shall take all
actions as are necessary to cause the Trust to be shown as the owner of
the related Mortgage Loan on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages
maintained by MERS;
(iv) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon, if any;
(v) any of (A) the original or duplicate original mortgagee title
insurance policy and all riders thereto; (B) a title search showing no
lien (other than standard exceptions) on the Mortgaged Property senior to
the lien of the Mortgage or (C) an opinion of counsel of the type
customarily rendered in the applicable jurisdiction in lieu of a title
insurance policy;
(vi) the original of any guarantee executed in connection with the
Mortgage Note;
(vii) for each Mortgage Loan, if any, which is secured by a
residential long-term lease, a copy of the lease with evidence of
recording indicated thereon, or, if the lease is in the process of being
recorded, a photocopy of the lease, certified by an officer of the
respective prior owner of such Mortgage Loan or by the applicable title
insurance company, closing/settlement/escrow agent or company or closing
attorney to be a true and correct copy of the lease transmitted for
recordation;
(viii) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage; and
(ix) for each Mortgage Loan secured by Co-op Shares, the originals
of the following documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate
UCC financing statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the Trustee with
evidence of recording thereon (or in a form suitable for
recordation).
provided, however, that on the Closing Date, with respect to item (iii), if an
Assignment of Mortgage is required to be recorded as set forth below, the
Depositor has delivered to the Trustee, or the Custodian on behalf of the
Trustee, a copy of such Assignment of Mortgage in blank rather than in the name
of the Trustee and has caused the applicable Servicer to retain the completed
Assignment of Mortgage for recording as described below, unless such Mortgage
has been recorded in the name of MERS or its designee. In addition, if the
Depositor is unable to deliver or cause the delivery of any original Mortgage
Note due to the loss of such original Mortgage Note, the Depositor may deliver a
copy of such Mortgage Note, together with a lost note affidavit, and shall
thereby be deemed to have satisfied the document delivery requirements of this
Section 2.01(b). As set forth on Exhibit J attached hereto is a list of all
states where recordation is required by any Rating Agency to obtain the initial
ratings of the Certificates. The Trustee may rely and shall be protected in
relying upon the information contained in such Exhibit J.
If in connection with any Mortgage Loans, the Depositor cannot
deliver (A) the Mortgage, (B) all interim recorded assignments, (C) all
assumption, modification, consolidation or extension agreements, if any, or (D)
the lender's title policy, if any (together with all riders thereto), satisfying
the requirements of clause (ii), (iii), (iv) or (v) above, respectively,
concurrently with the execution and delivery hereof because such document or
documents have not been returned from the applicable public recording office in
the case of clause (ii), (iii) or (iv) above, or because the title policy, if
any, has not been delivered to any of the related Servicer, the Seller or the
Depositor by the applicable title insurer in the case of clause (v) above, the
Depositor shall promptly deliver or cause to be delivered to the Trustee, or the
Custodian on behalf of the Trustee, in the case of clause (ii), (iii) or (iv)
above, such Mortgage, such interim assignment or such assumption, modification,
consolidation or extension agreement, as the case may be, with evidence of
recording indicated thereon upon receipt thereof from the public recording
office, but in no event shall any such delivery of any such documents or
instruments be made later than one year following the Closing Date, unless, in
the case of clause (ii), (iii) or (iv) above, there has been a continuing delay
at the applicable recording office or, in the case of clause (v) above, there
has been a continuing delay at the applicable insurer and the Depositor has
delivered the Officer's Certificate to such effect to the Trustee. The Depositor
shall forward or cause to be forwarded to the Trustee, or the Custodian on
behalf of the Trustee, (1) from time to time additional original documents
evidencing an assumption or modification of a Mortgage Loan and (2) any other
documents required to be delivered by the Depositor or the applicable Servicer
to the Trustee. In the event that the original Mortgage is not delivered and in
connection with the payment in full of the related Mortgage Loan the public
recording office requires the presentation of a "lost instruments affidavit and
indemnity" or any equivalent document, because only a copy of the Mortgage can
be delivered with the instrument of satisfaction or reconveyance, the Depositor
shall prepare, execute and deliver or cause to be prepared, executed and
delivered, on behalf of the Trust, such a document to the public recording
office.
As promptly as practicable subsequent to such transfer and
assignment, the applicable Servicer shall (except for any Mortgage which has
been recorded in the name of MERS or its designee) (I) cause each Assignment of
Mortgage to be in proper form for recording in the appropriate public office for
real property records within 30 days of the Closing Date and (II) at the
Depositor's expense, cause to be delivered for recording in the appropriate
public office for real property records the Assignments of the Mortgages to the
Trustee, except that, with respect to any Assignment of a Mortgage as to which
the related Servicer has not received the information required to prepare such
assignment in recordable form, such Servicer's obligation to do so and to
deliver the same for such recording shall be as soon as practicable after
receipt of such information and in any event within 30 days after the receipt
thereof; provided, however, no recording of an Assignment of Mortgage will be
required in a state if either (i) the Depositor furnishes to the Trustee an
unqualified Opinion of Counsel reasonably acceptable to the Trustee to the
effect that recordation of such assignment is not necessary under applicable
state law to preserve the Trustee's interest in the related Mortgage Loan
against the claim of any subsequent transferee of such Mortgage Loan or any
successor to, or creditor of, the Depositor or the originator of such Mortgage
Loan or (ii) the recordation of an Assignment of Mortgage in such state is not
required by any Rating Agency in order to obtain the initial ratings on the
Certificates on the Closing Date.
In the case of Mortgage Loans that have been prepaid in full as of
the Closing Date, the Depositor, in lieu of delivering the above documents to
the Trustee, or the Custodian on behalf of the Trustee, will cause the
applicable Servicer to deposit in the applicable Servicer Custodial Account the
portion of such payment that is required to be deposited in such Servicer
Custodial Account pursuant to Section 3.09.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.
Subject to the provisions of the following paragraph, the Trustee declares that
it, or the Custodian as its agent, will hold the documents referred to in
Section 2.01 and the other documents delivered to it constituting the Mortgage
Files, and that it will hold such other assets as are included in the Trust
Estate delivered to it, in trust for the exclusive use and benefit of all
present and future Certificateholders. Upon execution and delivery of this
document, the Trustee shall deliver, or shall cause the Custodian to deliver, to
the Depositor, the Trustee and the NIMS Insurer a certification in the form of
Exhibit K hereto (the "Initial Certification") to the effect that, except as may
be specified in a list of exceptions attached thereto, it has received the
original Mortgage Note relating to each of the Mortgage Loans listed on the
Mortgage Loan Schedule.
Within 90 days after the execution and delivery of this Agreement,
the Trustee shall review, or shall cause the Custodian to review, the Mortgage
Files in its possession, and shall deliver to the Depositor, the Trustee and the
NIMS Insurer a certification in the form of Exhibit L hereto (the "Final
Certification") to the effect that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule, except as may be specified in a list of exceptions
attached to such Final Certification, such Mortgage File contains all of the
items required to be delivered pursuant to Section 2.01(b).
If, in the course of such review, the Trustee or the Custodian finds
any document constituting a part of a Mortgage File which does not meet the
requirements of Section 2.01 or is omitted from such Mortgage File or if the
Depositor, a Servicer, the Trustee or the NIMS Insurer discovers a breach by a
Servicer or the Seller of any representation, warranty or covenant under the
Servicing Agreements or the Mortgage Loan Purchase Agreement in respect of any
Mortgage Loan and such breach materially adversely affects the interest of the
Certificateholders in the related Mortgage Loan (provided that any such breach
that causes the Mortgage Loan not to be a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the code shall be deemed to materially and
adversely affect the interests of the Certificateholders), then such party shall
promptly so notify the Seller or such Servicer, the Trustee, the NIMS Insurer
and the Depositor of such failure to meet the requirements of Section 2.01 or of
such breach and request that the Depositor, the applicable Servicer or the
Seller, as the case may be, deliver such missing documentation or cure such
defect or breach within 90 days of its discovery or its receipt of notice of any
such failure to meet the requirements of Section 2.01 or of such breach. If the
Depositor, the Seller or the applicable Servicer, as the case may be, does not
deliver such missing document or cure such defect or breach in all material
respects during such period, the Trustee shall enforce the obligation of the
Depositor, the applicable Servicer or the Seller, as the case may be, under this
Agreement, the applicable Servicing Agreement or the Mortgage Loan Purchase
Agreement, as applicable, and cause the Depositor, the applicable Servicer or
the Seller to either (a) in the case of the Seller only, substitute for the
related Mortgage Loan a Substitute Mortgage Loan, which substitution shall be
accomplished in the manner and subject to the conditions set forth below or (b)
purchase such Mortgage Loan from the Trust at the Repurchase Price for such
Mortgage Loan; provided, however, that in no event shall such a substitution
occur more than two years from the Closing Date; provided, further, that such
substitution or repurchase must occur within 90 days of when such defect was
discovered if such defect will cause the Mortgage Loan not to be a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code.
In performing any such review, the Trustee or the Custodian may
conclusively rely on the purported genuineness of any such document and any
signature thereon. It is understood that the scope of the Trustee's or the
Custodian's review of the Mortgage Files is limited solely to confirming that
the documents listed in Section 2.01 have been received and further confirming
that any and all documents delivered pursuant to Section 2.01 appear on their
face to have been executed and relate to the Mortgage Loans identified in the
Mortgage Loan Schedule based solely upon the review of items (i) and (xi) in the
definition of Mortgage Loan Schedule. Neither the Trustee nor the Custodian
shall have any responsibility for determining whether any document is valid and
binding, whether the text of any assignment or endorsement is in proper or
recordable form, whether any document has been recorded in accordance with the
requirements of any applicable jurisdiction, or whether a blanket assignment is
permitted in any applicable jurisdiction.
In the event of a discovery of a breach of any representation or
warranty of a Servicer or the Seller, the Trustee shall enforce the rights of
the Trust under the Servicing Agreements and the Mortgage Loan Purchase
Agreement for the benefit of the Certificateholders. In the event of a breach of
the representations or warranties with respect to the Mortgage Loans set forth
in a Servicing Agreement, the Trustee shall enforce the right of the Trust to be
indemnified for such breach of representation or warranty. In addition, if a
breach of a representation set forth in clauses (k) and (o) of paragraph 3 or
clauses (f) and (oo) of paragraph 4 of the Mortgage Loan Purchase Agreement
occurs as a result of a violation of an applicable predatory or abusive lending
law, the Trustee shall enforce the right of the Trust to reimbursement by the
Seller for all costs or damages incurred by the Trust as a result of the
violation of such law (such amount, the "Reimbursement Amount"), but, in the
case of a breach of a representation set forth in clauses (k) and (o) of
paragraph 3, only to the extent the applicable Servicer does not so reimburse
the Trust. It is understood and agreed that, except for any indemnification
provided in the Servicing Agreements and the payment of any Reimbursement
Amount, the obligation of a Servicer or the Seller to cure or to repurchase (or
substitute, in the case of the Seller) any Mortgage Loan as to which a document
is missing, a material defect in a constituent document exists or as to which
such a breach has occurred and is continuing shall constitute the sole remedies
against a Servicer or the Seller in respect of such omission, defect or breach
available to the Trustee on behalf of the Certificateholders.
It is understood and agreed that the representations and warranties
set forth in the Mortgage Loan Purchase Agreement shall survive delivery of the
Mortgage Files to the Trustee, or the Custodian on behalf of the Trustee, and
shall inure to the benefit of the Certificateholders notwithstanding any
restrictive or qualified endorsement or assignment. With respect to the
representations and warranties set forth in the Mortgage Loan Purchase Agreement
that are made to the best of the Seller's knowledge or as to which the Seller
had no knowledge, if it is discovered by the Depositor, the NIMS Insurer or the
Trustee that the substance of such representation or warranty is inaccurate and
such inaccuracy materially and adversely affects the interest of the
Certificateholders in the related Mortgage Loan then, notwithstanding the
Seller's lack of knowledge with respect to the substance of such representation
or warranty being inaccurate at the time the representation or warranty was
made, such inaccuracy shall be deemed a breach of the applicable representation
or warranty.
The representations and warranties of each Servicer with respect to
the applicable Mortgage Loans in the related Servicing Agreement, which have
been assigned to the Trustee hereunder, were made as of the date specified in
such Servicing Agreement. To the extent that any fact, condition or event with
respect to a Mortgage Loan constitutes a breach of both (i) a representation or
warranty of a Servicer under the related Servicing Agreement and (ii) a
representation or warranty of the Seller under the Mortgage Loan Purchase
Agreement, the only right or remedy of the Trustee or of any Certificateholder
shall be the Trustee's right to enforce the obligations of the applicable
Servicer under any applicable representation or warranty made by it. The Trustee
acknowledges that the Seller shall have no obligation or liability with respect
to any breach of a representation or warranty made by it with respect to the
Mortgage Loans if the fact, condition or event constituting such breach also
constitutes a breach of a representation or warranty made by the applicable
Servicer in the applicable Servicing Agreement, without regard to whether such
Servicer fulfills its contractual obligations in respect of such representation
or warranty. The Trustee further acknowledges that the Depositor shall have no
obligation or liability with respect to any breach of any representation or
warranty with respect to the Mortgage Loans (except as set forth in Section
2.04) under any circumstances.
With respect to each Substitute Mortgage Loan, the Seller shall
deliver to the Trustee, or the Custodian on behalf of the Trustee, for the
benefit of the Certificateholders, the Mortgage Note, the Mortgage, the related
Assignment of Mortgage (except for any Mortgage which has been recorded in the
name of MERS or its designee), and such other documents and agreements as are
otherwise required by Section 2.01, with the Mortgage Note endorsed and the
Mortgage assigned as required by Section 2.01. No substitution is permitted to
be made in any calendar month after the Determination Date for such month.
Monthly Payments due with respect to any such Substitute Mortgage Loan in the
month of substitution shall not be part of the Trust Estate. For the month of
substitution, distributions to Certificateholders will include the Monthly
Payment due for such month on any Defective Mortgage Loan for which the Seller
has substituted a Substitute Mortgage Loan.
The applicable Servicer shall amend the Mortgage Loan Schedule for
the benefit of the Certificateholders to reflect the removal of each Mortgage
Loan that has become a Defective Mortgage Loan and the substitution of the
Substitute Mortgage Loan or Loans and such Servicer shall deliver the amended
Mortgage Loan Schedule to the NIMS Insurer, the Trustee and the Custodian. Upon
such substitution, each Substitute Mortgage Loan shall be subject to the terms
of this Agreement in all respects, and the applicable Servicer (in the case of a
GreenPoint Mortgage Loan or a National City Mortgage Loan) or the Seller (in the
case of a BANA Mortgage Loan) shall be deemed to have made to the Trustee with
respect to such Substitute Mortgage Loan, as of the date of substitution, the
representations and warranties made pursuant to the applicable Servicing
Agreement or paragraph 4 of the Mortgage Loan Purchase Agreement, as the case
may be. Upon any such substitution and the remittance to the Trustee for deposit
to the Distribution Account of any required Substitution Adjustment Amount (as
described in the next paragraph) and receipt of a Request for Release, the
Trustee shall, or the Custodian on behalf of the Trustee upon receipt of written
notice from the Trustee of such deposit shall, release the Mortgage File
relating to such Defective Mortgage Loan to the Seller and shall execute and
deliver at the Seller's direction such instruments of transfer or assignment
prepared by the Seller, in each case without recourse, as shall be necessary to
vest title in the Seller, or its designee, to the Trustee's interest in any
Defective Mortgage Loan substituted for pursuant to this Section 2.02.
For any month in which the Seller substitutes one or more Substitute
Mortgage Loans for one or more Defective Mortgage Loans, the amount (if any) by
which the aggregate principal balance of all such Substitute Mortgage Loans in a
Loan Group as of the date of substitution is less than the aggregate Stated
Principal Balance of all such Defective Mortgage Loans in a Loan Group (after
application of the principal portion of the Monthly Payments due in the month of
substitution) (the "Substitution Adjustment Amount" for such Loan Group) plus an
amount equal to the aggregate of any unreimbursed Advances with respect to such
Defective Mortgage Loans shall be remitted to the Trustee for deposit to the
Distribution Account by the Seller on or before the Remittance Date for the
Distribution Date in the month succeeding the calendar month during which the
related Mortgage Loan is required to be purchased or replaced hereunder. The
Repurchase Price of any repurchase and the Substitution Adjustment Amount, if
any, shall be remitted to the Trustee for deposited to the Distribution Account.
The Trustee, or the Custodian on behalf of the Trustee, shall retain
possession and custody of each Mortgage File in accordance with and subject to
the terms and conditions set forth herein. Each Servicer shall cause to be
promptly delivered to the Trustee, or the Custodian on behalf of the Trustee,
upon the execution or, in the case of documents requiring recording, receipt
thereof, the originals of such other documents or instruments constituting the
Mortgage File as come into such Servicer's possession from time to time.
The Trustee, or the Custodian on behalf of the Trustee, shall be
under no duty or obligation (i) to inspect, review or examine any such
documents, instruments, certificates or other papers to determine that they are
genuine, enforceable, or appropriate for the represented purpose or that they
are other than what they purport to be on their face or (ii) to determine
whether any Mortgage File should include any of the documents specified in
Section 2.01(b)(iv), (vi), (vii), (viii) and (ix).
The Trustee is hereby directed to execute and deliver, on behalf of
the Trust, the Yield Maintenance Agreements.
Section 2.03 Representations, Warranties and Covenants of the
Servicers.
(a) GreenPoint hereby makes the following representations and
warranties to the Depositor, the NIMS Insurer and the Trustee, as of the Closing
Date:
(i) GreenPoint is a corporation duly organized, validly existing and
in good standing under the laws of the State of New York and has all
licenses necessary to carry on its business as now being conducted and is
licensed, qualified and in good standing in each state where a Mortgaged
Property is located if the laws of such state require licensing or
qualification in order to conduct business of the type conducted by
GreenPoint, and in any event GreenPoint is in compliance with the laws of
any such state to the extent necessary to ensure the enforceability of the
related Mortgage Loan and the servicing of such Mortgage Loan in
accordance with the terms of this Agreement; GreenPoint has the full
corporate power and authority to execute and deliver this Agreement and to
perform in accordance herewith; the execution, delivery and performance of
this Agreement (including all instruments of transfer to be delivered
pursuant to this Agreement) by GreenPoint and the consummation of the
transactions contemplated hereby have been duly and validly authorized;
this Agreement evidences the valid, binding and enforceable obligation of
GreenPoint; and all requisite corporate action has been taken by
GreenPoint to make this Agreement valid and binding upon GreenPoint in
accordance with its terms.
(ii) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of GreenPoint.
(iii) Neither the execution and delivery of this Agreement or the
transactions contemplated hereby, nor the fulfillment of or compliance
with the terms and conditions of this Agreement will conflict with or
result in a breach of any of the terms, articles of incorporation or
by-laws or any legal restriction or any agreement or instrument to which
GreenPoint is now a party or by which it is bound, or constitute a default
or result in the violation of any law, rule, regulation, order, judgment
or decree to which GreenPoint or its property is subject, or impair the
value of the Mortgage Loans.
(iv) GreenPoint is an approved seller/servicer of conventional
residential mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac, with the
facilities, procedures, and experienced personnel necessary for the sound
servicing of mortgage loans of the same type as the Mortgage Loans.
GreenPoint is a HUD approved mortgagee pursuant to Section 203 of the
National Housing Act and is in good standing to sell mortgage loans to and
service mortgage loans for Xxxxxx Mae or Xxxxxxx Mac, and no event has
occurred, including but not limited to a change in insurance coverage,
which would make GreenPoint unable to comply with Xxxxxx Mae or Xxxxxxx
Mac eligibility requirements or which would require notification to either
Xxxxxx Mae or Xxxxxxx Mac.
(v) GreenPoint does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant contained
in this Agreement.
(vi) There is no action, suit, proceeding or investigation pending
or to its knowledge threatened against GreenPoint which, either in any one
instance or in the aggregate, may result in any material adverse change in
the business, operations, financial condition, properties or assets of
GreenPoint, or in any material impairment of the right or ability of
GreenPoint to carry on its business substantially as now conducted, or in
any material liability on the part of GreenPoint, or which would draw into
question the validity of this Agreement or of any action taken or to be
contemplated herein, or which would be likely to impair materially the
ability of GreenPoint to perform under the terms of this Agreement.
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by GreenPoint of or compliance by GreenPoint with this
Agreement as evidenced by the consummation of the transactions
contemplated by this Agreement, or if required, such approval has been
obtained prior to the Closing Date.
(viii) Neither this Agreement nor any statement, report or other
document prepared and furnished by or on behalf of GreenPoint or to be
prepared and furnished by or on behalf of GreenPoint pursuant to this
Agreement or in connection with the transactions contemplated hereby
contains any untrue material statement of fact or omits to state a
material fact necessary to make the statements contained therein not
misleading.
(ix) There has been no material adverse change in the business,
operations, financial condition or assets of GreenPoint since the date of
GreenPoint's most recent financial statements.
(x) GreenPoint has fully furnished, and shall continue to fully
furnish for so long as it is servicing the GreenPoint Mortgage Loans
hereunder, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information on the related
Mortgagor credit files to Equifax, Experian and Trans Union Credit
Information Company on a monthly basis.
(b) BANA hereby makes the following representations and warranties
to the Depositor, the NIMS Insurer and the Trustee, as of the Closing Date:
(i) BANA is a national banking association duly organized, validly
existing and in good standing under the laws of the United States of
America and has all licenses necessary to carry on its business as now
being conducted and is licensed, qualified and in good standing in each
state where a Mortgaged Property is located if the laws of such state
require licensing or qualification in order to conduct business of the
type conducted by BANA, and in any event BANA is in compliance with the
laws of any such state to the extent necessary to ensure the
enforceability of the related Mortgage Loan and the servicing of such
Mortgage Loan in accordance with the terms of this Agreement; BANA has the
full corporate power and authority to execute and deliver this Agreement
and to perform in accordance herewith; the execution, delivery and
performance of this Agreement (including all instruments of transfer to be
delivered pursuant to this Agreement) by BANA and the consummation of the
transactions contemplated hereby have been duly and validly authorized;
this Agreement evidences the valid, binding and enforceable obligation of
BANA; and all requisite corporate action has been taken by BANA to make
this Agreement valid and binding upon BANA in accordance with its terms.
(ii) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of BANA.
(iii) Neither the execution and delivery of this Agreement or the
transactions contemplated hereby, nor the fulfillment of or compliance
with the terms and conditions of this Agreement will conflict with or
result in a breach of any of the terms, charter or by-laws or any legal
restriction or any agreement or instrument to which BANA is now a party or
by which it is bound, or constitute a default or result in the violation
of any law, rule, regulation, order, judgment or decree to which BANA or
its property is subject, or impair the value of the Mortgage Loans.
(iv) BANA is an approved seller/servicer of conventional residential
mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac, with the facilities,
procedures, and experienced personnel necessary for the sound servicing of
mortgage loans of the same type as the Mortgage Loans. BANA is a HUD
approved mortgagee pursuant to Section 203 of the National Housing Act and
is in good standing to sell mortgage loans to and service mortgage loans
for Xxxxxx Mae or Xxxxxxx Mac, and no event has occurred, including but
not limited to a change in insurance coverage, which would make BANA
unable to comply with Xxxxxx Mae or Xxxxxxx Mac eligibility requirements
or which would require notification to either Xxxxxx Mae or Xxxxxxx Mac.
(v) BANA does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant contained in this
Agreement.
(vi) There is no action, suit, proceeding or investigation pending
or to its knowledge threatened against BANA which, either in any one
instance or in the aggregate, may result in any material adverse change in
the business, operations, financial condition, properties or assets of
BANA, or in any material impairment of the right or ability of BANA to
carry on its business substantially as now conducted, or in any material
liability on the part of BANA, or which would draw into question the
validity of this Agreement or of any action taken or to be contemplated
herein, or which would be likely to impair materially the ability of BANA
to perform under the terms of this Agreement.
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by BANA of or compliance by BANA with this Agreement as
evidenced by the consummation of the transactions contemplated by this
Agreement, or if required, such approval has been obtained prior to the
Closing Date.
(viii) Neither this Agreement nor any statement, report or other
document prepared and furnished by or on behalf of BANA or to be prepared
and furnished by or on behalf of BANA pursuant to this Agreement or in
connection with the transactions contemplated hereby contains any untrue
material statement of fact or omits to state a material fact necessary to
make the statements contained therein not misleading.
(ix) There has been no material adverse change in the business,
operations, financial condition or assets of BANA since the date of BANA's
most recent financial statements.
(x) BANA has fully furnished, and shall continue to fully furnish
for so long as it is servicing the BANA Mortgage Loans in Loan Group 1
hereunder, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information on the related
Mortgagor credit files to Equifax, Experian and Trans Union Credit
Information Company on a monthly basis.
(c) National City Mortgage hereby makes the following
representations and warranties to the Depositor, the NIMS Insurer and the
Trustee, as of the Closing Date:
(i) National City Mortgage is a corporation duly organized, validly
existing and in good standing under the laws of the State of Ohio and has
all licenses necessary to carry on its business as now being conducted and
is licensed, qualified and in good standing in each state where a
Mortgaged Property is located if the laws of such state require licensing
or qualification in order to conduct business of the type conducted by
National City Mortgage, and in any event National City Mortgage is in
compliance with the laws of any such state to the extent necessary to
ensure the enforceability of the related Mortgage Loan and the servicing
of such Mortgage Loan in accordance with the terms of this Agreement;
National City Mortgage has the full corporate power and authority to
execute and deliver this Agreement and to perform in accordance herewith;
the execution, delivery and performance of this Agreement (including all
instruments of transfer to be delivered pursuant to this Agreement) by
National City Mortgage and the consummation of the transactions
contemplated hereby have been duly and validly authorized; this Agreement
evidences the valid, binding and enforceable obligation of National City
Mortgage; and all requisite corporate action has been taken by National
City Mortgage to make this Agreement valid and binding upon National City
Mortgage in accordance with its terms.
(ii) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of National City
Mortgage.
(iii) Neither the execution and delivery of this Agreement or the
transactions contemplated hereby, nor the fulfillment of or compliance
with the terms and conditions of this Agreement will conflict with or
result in a breach of any of the terms, articles of incorporation or
by-laws or any legal restriction or any agreement or instrument to which
National City Mortgage is now a party or by which it is bound, or
constitute a default or result in the violation of any law, rule,
regulation, order, judgment or decree to which National City Mortgage or
its property is subject, or impair the value of the Mortgage Loans.
(iv) National City Mortgage is an approved seller/servicer of
conventional residential mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac,
with the facilities, procedures, and experienced personnel necessary for
the sound servicing of mortgage loans of the same type as the Mortgage
Loans. National City Mortgage is a HUD approved mortgagee pursuant to
Section 203 of the National Housing Act and is in good standing to sell
mortgage loans to and service mortgage loans for Xxxxxx Mae or Xxxxxxx
Mac, and no event has occurred, including but not limited to a change in
insurance coverage, which would make National City Mortgage unable to
comply with Xxxxxx Mae or Xxxxxxx Mac eligibility requirements or which
would require notification to either Xxxxxx Mae or Xxxxxxx Mac.
(v) National City Mortgage does not believe, nor does it have any
reason or cause to believe, that it cannot perform each and every covenant
contained in this Agreement.
(vi) There is no action, suit, proceeding or investigation pending
or to its knowledge threatened against National City Mortgage which,
either in any one instance or in the aggregate, may result in any material
adverse change in the business, operations, financial condition,
properties or assets of National City Mortgage, or in any material
impairment of the right or ability of National City Mortgage to carry on
its business substantially as now conducted, or in any material liability
on the part of National City Mortgage, or which would draw into question
the validity of this Agreement or of any action taken or to be
contemplated herein, or which would be likely to impair materially the
ability of National City Mortgage to perform under the terms of this
Agreement.
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by National City Mortgage of or compliance by National City
Mortgage with this Agreement as evidenced by the consummation of the
transactions contemplated by this Agreement, or if required, such approval
has been obtained prior to the Closing Date.
(viii) Neither this Agreement nor any statement, report or other
document prepared and furnished by or on behalf of National City Mortgage
or to be prepared and furnished by or on behalf of National City Mortgage
pursuant to this Agreement or in connection with the transactions
contemplated hereby contains any untrue material statement of fact or
omits to state a material fact necessary to make the statements contained
therein not misleading.
(ix) There has been no material adverse change in the business,
operations, financial condition or assets of National City Mortgage since
the date of National City Mortgage's most recent financial statements.
The representations and warranties made pursuant to this Section
2.03 shall survive delivery of the respective Mortgage Files to the Trustee, or
the Custodian on behalf of the Trustee, for the benefit of the
Certificateholders.
Section 2.04 Representations and Warranties of the Depositor as to
the Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee and the
NIMS Insurer with respect to the Mortgage Loans or each Mortgage Loan, as the
case may be, as of the date hereof or such other date set forth herein that as
of the Closing Date:
(i) Immediately prior to the transfer and assignment contemplated
herein, the Depositor was the sole owner and holder of the Mortgage Loans.
The Mortgage Loans were not assigned or pledged by the Depositor and the
Depositor had good and marketable title thereto, and the Depositor had
full right to transfer and sell the Mortgage Loans to the Trustee free and
clear of any encumbrance, participation interest, lien, equity, pledge,
claim or security interest and had full right and authority subject to no
interest or participation in, or agreement with any other party to sell or
otherwise transfer the Mortgage Loans.
(ii) As of the Closing Date, the Depositor has transferred all
right, title and interest in the Mortgage Loans to the Trustee on behalf
of the Trust.
(iii) As of the Closing Date, the Depositor has not transferred the
Mortgage Loans to the Trustee on behalf of the Trust with any intent to
hinder, delay or defraud an of its creditors.
It is understood and agreed that the representations and warranties
set forth in this Section 2.04 shall survive delivery of the respective Mortgage
Files to the Trustee, or the Custodian on behalf of the Trustee, and shall inure
to the benefit of the Trustee, notwithstanding any restrictive or qualified
endorsement or assignment.
Section 2.05 Designation of Interests in the REMICs. The Depositor
hereby designates the Classes of Certificates (other than the Group 3
Certificates and the Residual Certificate) as "regular interests" and the Class
1-UR Interest as the single class of "residual interest" in the Upper-Tier REMIC
for the purposes of Code Sections 860G(a)(1) and 860G(a)(2), respectively. The
Depositor hereby designates the Group 3 Certificates (other than the Class 3-A-3
and Class 3-P Certificates) and the Components as "regular interests" and the
Class 3-UR Interest as the single class of "residual interest" in the Group 3
Upper-Tier REMIC for the purposes of Code Sections 860G(a)(1) and 860G(a)(2),
respectively. The Depositor hereby further designates (i) the Uncertificated
Lower-Tier Interests as classes of "regular interests" and the Class 1-LR
Interest as the single class of "residual interest" in the Lower-Tier REMIC for
the purposes of Code Sections 860G(a)(1) and 860G(a)(2), respectively; and (ii)
the Uncertificated Group 3 Lower-Tier Interests as classes of "regular
interests" and the Class 3-LR Interest as the single class of "residual
interest" in the Group 3 Lower-Tier REMIC for the purposes of Code Sections
860G(a)(1) and 860G(a)(2), respectively.
Section 2.06 Designation of Start-up Day. The Closing Date is hereby
designated as the "start-up day" of each REMIC within the meaning of Section
860G(a)(9) of the Code.
Section 2.07 REMIC Certificate Maturity Date. Solely for purposes of
satisfying Section 1.860G-1(a)(4)(iii) of the Treasury Regulations, the "latest
possible maturity date" of the regular interests in each REMIC is April 20,
2035.
Section 2.08 Execution and Delivery of Certificates. The Trustee (i)
acknowledges the issuance of and hereby declares that it holds the
Uncertificated Lower-Tier Interests on behalf of the Upper-Tier REMIC and the
Certificateholders (other than holders of the Group 3 Certificates), (ii)
acknowledges the issuance of and hereby declares that it holds the Group 3
Uncertificated Lower-Tier Interests on behalf of the Group 3 Upper-Tier REMIC
and the holders of Group 3 Certificates (other than the Class 3-P Certificates)
and the Class 1-A-R Certificate (in respect of the Class 3-UR Interest), and
(iii) has executed and delivered to or upon the order of the Depositor, in
exchange for the Mortgage Loans, the Uncertificated Lower-Tier Interests and the
Uncertificated Group 3 Lower Tier Interests, together with all other assets
included in the definition of "Trust Estate," receipt of which is hereby
acknowledged, Certificates in authorized denominations which, together with the
Uncertificated Lower Tier Interests and the Uncertificated Group 3 Lower Tier
Interests, evidence ownership of the entire Trust Estate.
Section 2.09 Repurchase of Converted Mortgage Loans. The Depositor
shall repurchase from the Trust any Converted Mortgage Loan prior to the first
Due Date for such Mortgage Loan following the Conversion Date. Any such
repurchase shall be at the Purchase Price. The Purchase Price for any
repurchased Converted Mortgage Loan shall be delivered to the Trustee for
deposit to the Distribution Account and, upon receipt by the Trustee of written
notification of any such deposit signed by an officer of the Depositor and a
Request for Release, the Trustee, or the Custodian on behalf of the Trustee,
shall release to the Depositor the related Mortgage File and shall execute and
deliver such instruments of transfer or assignment prepared by the Depositor, in
each case without recourse, as shall be necessary to vest in the Depositor legal
and beneficial ownership of such Converted Mortgage Loan.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicers to Service Mortgage Loans. For and on behalf
of the Certificateholders, GreenPoint shall service and administer the
GreenPoint Mortgage Loans, BANA shall service and administer the BANA Mortgage
Loans and National City Mortgage shall service and administer the National City
Mortgage Mortgage Loans, each in accordance with the terms of this Agreement,
Customary Servicing Procedures, applicable law and the terms of the Mortgage
Notes and Mortgages. In connection with such servicing and administration, each
Servicer shall have full power and authority, acting alone and/or through
Subservicers as provided in Section 3.02, to do or cause to be done any and all
things that it may deem necessary or desirable in connection with such servicing
and administration including, but not limited to, the power and authority,
subject to the terms hereof, (a) to execute and deliver, on behalf of the
Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents, (b) to consent, with respect to the Mortgage Loans it
services, to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages (but only in the manner provided in this Agreement),
(c) to collect any Insurance Proceeds and other Liquidation Proceeds relating to
the Mortgage Loans it services, and (d) to effectuate foreclosure or other
conversion of the ownership of the Mortgaged Property securing any Mortgage Loan
it services. Each Servicer shall represent and protect the interests of the
Trust in the same manner as it protects its own interests in mortgage loans in
its own portfolio in any claim, proceeding or litigation regarding a Mortgage
Loan and shall not make or permit any modification, waiver or amendment of any
term of any Mortgage Loan, except as provided pursuant to Section 3.22. Without
limiting the generality of the foregoing, each Servicer, in its own name or in
the name of any Subservicer or the Depositor and the Trustee, is hereby
authorized and empowered by the Depositor and the Trustee, when such Servicer or
any Subservicer, as the case may be, believes it appropriate in its reasonable
judgment, to execute and deliver, on behalf of the Trustee, the Depositor, the
Certificateholders or any of them, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Mortgage Loans it services, and with
respect to the related Mortgaged Properties held for the benefit of the
Certificateholders. Each 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 such Servicer to service and
administer the Mortgage Loans it services to the extent that such Servicer is
not permitted to execute and deliver such documents pursuant to the preceding
sentence. Upon receipt of such documents, the Depositor and/or the Trustee, upon
the direction of the related Servicer, shall promptly execute such documents and
deliver them to the related Servicer.
In accordance with the standards of the preceding paragraph, each
Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the payment of taxes and assessments on the Mortgaged
Properties relating to the Mortgage Loans it services, which Servicing Advances
shall be reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.10, and further as provided in Section 3.13.
The costs incurred by the Servicers, if any, in effecting the timely payments of
taxes and assessments on the Mortgaged Properties and related insurance premiums
shall not, for the purpose of calculating monthly distributions to the
Certificateholders, be added to the Stated Principal Balances of the related
Mortgage Loans, notwithstanding that the terms of such Mortgage Loans so permit.
The relationship of each Servicer (and of any successor to any
Servicer as servicer under this Agreement) to the Trustee under this Agreement
is intended by the parties to be that of an independent contractor and not that
of a joint venturer, partner or agent.
Section 3.02 Subservicing; Enforcement of the Obligations of the
Servicers.
(a) Each Servicer may arrange for the subservicing of any Mortgage
Loan it services by a Subservicer pursuant to a Subservicing Agreement;
provided, however, that such subservicing arrangement and the terms of the
related Subservicing Agreement must provide for the servicing of such Mortgage
Loan in a manner consistent with the servicing arrangements contemplated
hereunder. Notwithstanding the provisions of any Subservicing Agreement, any of
the provisions of this Agreement relating to agreements or arrangements between
a Servicer and a Subservicer or reference to actions taken through a Subservicer
or otherwise, such Servicer shall remain obligated and liable to the Depositor,
the Trustee and the Certificateholders for the servicing and administration of
the Mortgage Loans it services in accordance with the provisions of this
Agreement without diminution of such obligation or liability by virtue of such
Subservicing Agreements or arrangements or by virtue of indemnification from the
Subservicer and to the same extent and under the same terms and conditions as if
such Servicer alone were servicing and administering those Mortgage Loans. All
actions of each Subservicer performed pursuant to the related Subservicing
Agreement shall be performed as agent of the related Servicer with the same
force and effect as if performed directly by such Servicer.
(b) For purposes of this Agreement, each Servicer shall be deemed to
have received any collections, recoveries or payments with respect to the
Mortgage Loans it services that are received by a Subservicer regardless of
whether such payments are remitted by the Subservicer to such Servicer.
(c) As part of its servicing activities hereunder, each Servicer,
for the benefit of the Trustee and the Certificateholders, shall use its best
reasonable efforts to enforce the obligations of each Subservicer engaged by
such Servicer under the related Subservicing Agreement, to the extent that the
non-performance of any such obligation would have a material and adverse effect
on a Mortgage Loan. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Subservicing Agreements and the pursuit of
other appropriate remedies, shall be in such form and carried out to such an
extent and at such time as the related Servicer, in its good faith business
judgment, would require were it the owner of the related Mortgage Loans. The
related Servicer shall pay the costs of such enforcement at its own expense, and
shall be reimbursed therefor only (i) from a general recovery resulting from
such enforcement to the extent, if any, that such recovery exceeds all amounts
due in respect of the related Mortgage Loan or (ii) from a specific recovery of
costs, expenses or attorneys fees against the party against whom such
enforcement is directed.
(d) Any Subservicing Agreement entered into by a Servicer shall
provide that it may be assumed or terminated by the Trustee, if the Trustee has
assumed the duties of such Servicer, or any successor Servicer, at the Trustee's
or successor Servicer's option, as applicable, without cost or obligation to the
assuming or terminating party or the Trust Estate, upon the assumption by such
party of the obligations of such Servicer pursuant to Section 8.05.
Any Subservicing Agreement, and any other transactions or services
relating to the Mortgage Loans involving a Subservicer, shall be deemed to be
between the related Servicer and such Subservicer alone, and the Trustee and the
Certificateholders shall not be deemed parties thereto and shall have no claims
or rights of action against, rights, obligations, duties or liabilities to or
with respect to the Subservicer or its officers, directors or employees, except
as set forth in Section 3.01.
Section 3.03 Fidelity Bond; Errors and Omissions Insurance. Each
Servicer shall maintain, at its own expense, a blanket fidelity bond and an
errors and omissions insurance policy, with broad coverage on all officers,
employees or other persons acting in any capacity requiring such persons to
handle funds, money, documents or papers relating to the Mortgage Loans it
services. These policies must insure such Servicer against losses resulting from
dishonest or fraudulent acts committed by such Servicer's personnel, any
employees of outside firms that provide data processing services for such
Servicer, and temporary contract employees or student interns. Such fidelity
bond shall also protect and insure such Servicer against losses in connection
with the release or satisfaction of a Mortgage Loan without having obtained
payment in full of the indebtedness secured thereby. No provision of this
Section 3.03 requiring such fidelity bond and errors and omissions insurance
shall diminish or relieve such Servicer from its duties and obligations as set
forth in this Agreement. The minimum coverage under any such bond and insurance
policy shall be at least equal to the corresponding amounts required by FNMA in
the FNMA Servicing Guide or by FHLMC in the FHLMC Sellers' & Servicers' Guide,
as amended or restated from time to time, or in an amount as may be permitted to
such Servicer by express waiver of FNMA or FHLMC. In the event that any such
policy or bond ceases to be in effect, each Servicer shall obtain a comparable
replacement policy or bond from an insurer or issuer, meeting the requirements
set forth above as of the date of such replacement.
Section 3.04 Access to Certain Documentation.
Each Servicer shall provide to the OCC, the OTS, the FDIC and to
comparable regulatory authorities supervising Holders of Certificates and the
examiners and supervisory agents of the OCC, the OTS, the FDIC and such other
authorities, access to the documentation required by applicable regulations of
the OCC, the OTS, the FDIC and such other authorities with respect to the
Mortgage Loans. Such access shall be afforded without charge, but only upon
reasonable and prior written request and during normal business hours at the
offices designated by the related Servicer. Nothing in this Section 3.04 shall
limit the obligation of the related Servicer to observe any applicable law and
the failure of the related Servicer to provide access as provided in this
Section 3.04 as a result of such obligation shall not constitute a breach of
this Section 3.04.
Section 3.05 Maintenance of Primary Mortgage Insurance Policy;
Claims; Collection of BPP Mortgage Loan Payments.
(a) With respect to each Mortgage Loan with a Loan-to-Value Ratio in
excess of 80% or such other Loan-to-Value Ratio as may be required by law, the
Servicer responsible for servicing such Mortgage Loan shall, without any cost to
the Trust Estate, maintain or cause the Mortgagor to maintain in full force and
effect a Primary Mortgage Insurance Policy insuring that portion of the Mortgage
Loan in excess of a percentage in conformity with FNMA requirements. The related
Servicer shall pay or shall cause the Mortgagor to pay the premium thereon on a
timely basis, at least until the Loan-to-Value Ratio of such Mortgage Loan is
reduced to 80% or such other Loan-to-Value Ratio as may be required by law. If
such Primary Mortgage Insurance Policy is terminated, the related Servicer shall
obtain from another insurer a comparable replacement policy, with a total
coverage equal to the remaining coverage of such terminated Primary Mortgage
Insurance Policy. If the insurer shall cease to be an insurer acceptable to
FNMA, the related Servicer shall notify the Trustee in writing, it being
understood that the such Servicer shall not have any responsibility or liability
for any failure to recover under the Primary Mortgage Insurance Policy for such
reason. If such Servicer determines that recoveries under the Primary Mortgage
Insurance Policy are jeopardized by the financial condition of the insurer, such
Servicer shall obtain from another insurer which meets the requirements of this
Section 3.05 a replacement insurance policy. A 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 such Servicer, would
have been covered thereunder. In connection with any assumption or substitution
agreement entered into or to be entered into pursuant to Section 3.14, the
related 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 related Servicer shall obtain a
replacement Primary Mortgage Insurance Policy as provided above.
In connection with its activities as servicer, each Servicer agrees
to prepare and present, on behalf of itself, the Trustee and the
Certificateholders, claims to the insurer under any Primary Mortgage Insurance
Policy in a timely fashion in accordance with the terms of such Primary Mortgage
Insurance Policy and, in this regard, to take such action as shall be necessary
to permit recovery under any Primary Mortgage Insurance Policy respecting a
defaulted Mortgage Loan. Pursuant to Section 3.10(a), any amounts collected by a
Servicer under any Primary Mortgage Insurance Policy shall be deposited in the
related Escrow Account, subject to withdrawal pursuant to Section 3.10(b).
Each Servicer will comply with all provisions of applicable state
and federal law relating to the cancellation of, or collection of premiums with
respect to, each Primary Mortgage Insurance Policy, including, but not limited
to, the provisions of the Homeowners Protection Act of 1998, and all regulations
promulgated thereunder, as amended from time to time.
(b) BANA shall take all actions necessary to collect, on behalf of
the Trust, any BPP Mortgage Loan Payments required to be made to the Trust
pursuant to the Mortgage Loan Purchase Agreement.
Section 3.06 Rights of the Depositor and the Trustee in Respect of
the Servicers.
The Depositor may, but is not obligated to, enforce the obligations
of each Servicer hereunder and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of any Servicer hereunder and in
connection with any such defaulted obligation to exercise the related rights of
such Servicer hereunder; provided that a Servicer shall not be relieved of any
of its obligations hereunder by virtue of such performance by the Depositor or
its designee. Neither the Trustee nor the Depositor shall have any
responsibility or liability for any action or failure to act by a Servicer nor
shall the Trustee or the Depositor be obligated to supervise the performance of
a Servicer (or any Subservicer) hereunder or otherwise.
Section 3.07 Trustee to Act as Servicer.
If a Servicer shall for any reason no longer be a Servicer hereunder
(including by reason of an Event of Default), the Trustee shall within 90 days
of such time, assume, if it so elects, or shall appoint a successor Servicer to
assume, all of the rights and obligations of such Servicer hereunder arising
thereafter (except that the Trustee shall not be (a) liable for losses of such
Servicer pursuant to Section 3.13 or any acts or omissions of such predecessor
Servicer hereunder, (b) obligated to make Advances if it is prohibited from
doing so by applicable law or (c) deemed to have made any representations and
warranties of such Servicer hereunder). Any such assumption shall be subject to
Sections 7.02 and 8.05. If a Servicer shall for any reason no longer be a
Servicer (including by reason of any Event of Default), the Trustee or the
successor Servicer may elect to succeed to any rights and obligations of such
Servicer under each Subservicing Agreement or may terminate each Subservicing
Agreement. If it has elected to assume the Subservicing Agreement, the Trustee
or the successor Servicer shall be deemed to have assumed all of a Servicer's
interest therein and to have replaced such Servicer as a party to any
Subservicing Agreement entered into by a Servicer as contemplated by Section
3.02 to the same extent as if the Subservicing Agreement had been assigned to
the assuming party except that such 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 Trustee, but at the expense of such predecessor Servicer, deliver
to the assuming party all documents and records relating to each Subservicing
Agreement or substitute servicing agreement and the Mortgage Loans then being
serviced thereunder and an accounting of amounts collected or held by it and
otherwise use its best efforts to effect the orderly and efficient transfer of
such Subservicing Agreement to the assuming party. The Trustee shall be entitled
to be reimbursed from the predecessor Servicer (or the Trust if the predecessor
Servicer is unable to fulfill its obligations hereunder) for all Servicing
Transfer Costs.
Section 3.08 Collection of Mortgage Loan Payments.
Continuously from the date hereof until the principal and interest
on all Mortgage Loans are paid in full, each Servicer will proceed diligently,
in accordance with this Agreement, to collect all payments due under each of the
Mortgage Loans it services when the same shall become due and payable. Further,
each Servicer will in accordance with all applicable law and Customary Servicing
Procedures ascertain and estimate taxes, assessments, fire and hazard insurance
premiums, mortgage insurance premiums and all other charges with respect to the
Mortgage Loans it services that, as provided in any Mortgage, will become due
and payable to the end that the installments payable by the Mortgagors will be
sufficient to pay such charges as and when they become due and payable.
Consistent with the foregoing, each Servicer may in its discretion (i) waive any
late payment charge or any Prepayment Premium or penalty interest in connection
with the prepayment of a Mortgage Loan it services and (ii) extend the due dates
for payments due on a Mortgage Note for a period not greater than 120 days;
provided, however, that a Servicer cannot extend the maturity of any such
Mortgage Loan past the date on which the final payment is due on the latest
maturing Mortgage Loan as of the Cut-off Date. In the event of any such
arrangement, such Servicer shall make Periodic Advances on the related Mortgage
Loan in accordance with the provisions of Section 3.21 during the scheduled
period in accordance with the amortization schedule of such Mortgage Loan
without modification thereof by reason of such arrangements. A Servicer shall
not be required to institute or join in litigation with respect to collection of
any payment (whether under a Mortgage, Mortgage Note or otherwise or against any
public or governmental authority with respect to a taking or condemnation) if it
reasonably believes that enforcing the provision of the Mortgage or other
instrument pursuant to which such payment is required is prohibited by
applicable law.
Section 3.09 Collection of Mortgage Loan Payments; Servicer
Custodial Accounts, Distribution Account and Reserve Account. (a) GreenPoint
shall establish and maintain the GreenPoint Custodial Account. BANA shall
establish and maintain the BANA Custodial Account. National City Mortgage shall
establish and maintain the National City Mortgage Custodial Account. GreenPoint
shall deposit or cause to be deposited into the GreenPoint Custodial Account,
BANA shall deposit or cause to be deposited into the BANA Custodial Account and
National City Mortgage shall deposit or cause to be deposited into the National
City Custodial Account, all on a daily basis within one Business Day of receipt,
except as otherwise specifically provided herein, the following payments and
collections remitted by Subservicers or received by such Servicer in respect of
the Mortgage Loans it services subsequent to the Cut-off Date (other than in
respect of principal and interest due on the Mortgage Loans on or before the
Cut-off Date) and the following amounts required to be deposited hereunder with
respect to the Mortgage Loans it services:
(i) all payments on account of principal of such Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on such Mortgage Loans, net
of the Servicing Fee;
(iii) (A) all Insurance Proceeds and Liquidation Proceeds, other
than Insurance Proceeds to be (1) applied to the restoration or repair of
the Mortgaged Property, (2) released to the Mortgagor in accordance with
Customary Servicing Procedures or (3) deposited to an Escrow Account
pursuant to Section 3.10(a) and other than any Excess Proceeds and (B) any
Insurance Proceeds released from an Escrow Account pursuant to Section
3.10(b)(iv);
(iv) any amount required to be deposited by such Servicer pursuant
to Section 3.09(c) in connection with any losses on Permitted Investments
with respect to such Servicer Custodial Account;
(v) any amounts required to be deposited by such Servicer pursuant
to Section 3.15 or any Prepayment Premiums required to be remitted by such
Servicer;
(vi) all Repurchase Prices, all Substitution Adjustment Amounts and
all Reimbursement Amounts to the extent received by such Servicer;
(vii) Periodic Advances made by such Servicer pursuant to Section
3.21 and any Compensating Interest;
(viii) any Recovery; and
(ix) any other amounts required to be deposited hereunder.
The foregoing requirements for deposits to the Servicer Custodial
Accounts by the Servicers shall be exclusive, it being understood and agreed
that, without limiting the generality of the foregoing, any Ancillary Income
need not be deposited by a Servicer. If a Servicer shall deposit in the related
Servicer Custodial Account any amount not required to be deposited, it may at
any time withdraw or direct the institution maintaining such Servicer Custodial
Account to withdraw such amount from such Servicer Custodial Account, any
provision herein to the contrary notwithstanding. Each Servicer Custodial
Account may contain funds that belong to one or more trust funds created for
mortgage pass-through certificates of other series and may contain other funds
respecting payments on mortgage loans belonging to the applicable Servicer or
serviced by such Servicer on behalf of others; provided that such commingling of
funds with respect to a Servicer shall not be permitted at any time during which
S&P's senior short-term unsecured debt rating of such Servicer falls below
"A-2." Notwithstanding such commingling of funds, each Servicer shall keep
records that accurately reflect the funds on deposit in the applicable Servicer
Custodial Account that have been identified by it as being attributable to the
Mortgage Loans it services. Each Servicer shall maintain adequate records with
respect to all withdrawals made pursuant to this Section 3.09. All funds
required to be deposited in a Servicer Custodial Account shall be held in trust
for the Certificateholders until withdrawn in accordance with Section 3.12.
Amounts received in respect of the Group 1 Mortgage Loans shall be deemed
deposited in Sub-Account 1. Amounts received in respect of the Group 2 Mortgage
Loans shall be deemed deposited in Sub-Account 2. Amounts received in respect of
the Group 3 Mortgage Loans shall be deemed deposited in Sub-Account 3.
(b) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Distribution Account, which shall be deemed to consist
of five sub-accounts. The Trustee shall, promptly upon receipt, deposit in the
Distribution Account and retain therein the following:
(i) the aggregate amount remitted by each Servicer to the Trustee
pursuant to Section 3.12(a)(viii);
(ii) any amount paid by the Trustee pursuant to Section 3.09(c) in
connection with any losses on Permitted Investments with respect to the
Distribution Account; and
(iii) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
If a Servicer shall remit any amount not required to be remitted, it
may at any time direct the Trustee to withdraw such amount from the Distribution
Account, any provision herein to the contrary notwithstanding. Such direction
may be accomplished by delivering an Officer's Certificate to the Trustee which
describes the amounts deposited in error in the Distribution Account. All funds
required to be deposited in the Distribution Account shall be held by the
Trustee in trust for the Certificateholders until disbursed in accordance with
this Agreement or withdrawn in accordance with Section 3.12. In no event shall
the Trustee incur liability for withdrawals from the Distribution Account at the
direction of a Servicer.
(c) Each institution at which any Servicer Custodial Account or the
Distribution Account is maintained shall invest the funds therein as directed in
writing by GreenPoint (in the case of the GreenPoint Custodial Account), BANA
(in the case of the BANA Custodial Account), National City Mortgage (in the case
of the National City Mortgage Custodial Account) or the Trustee (in the case of
the Distribution Account) in Permitted Investments, which shall mature not later
than (i) in the case of any Servicer Custodial Account, the Business Day next
preceding the related Remittance Date (except that if such Permitted Investment
is an obligation of the institution that maintains such account, then such
Permitted Investment shall mature not later than such Remittance Date) and (ii)
in the case of the Distribution Account, the Business Day next preceding the
Distribution Date (except that if such Permitted Investment is an obligation of
the institution that maintains such account, then such Permitted Investment
shall mature not later than such Distribution Date) and, in each case, shall not
be sold or disposed of prior to its maturity. All such Permitted Investments
shall be made in the name of the Trustee, for the benefit of the
Certificateholders. All Servicer Custodial Account Reinvestment Income shall be
for the benefit of the related Servicer as part of its Servicing Compensation
and shall be retained by it monthly as provided herein. All income or gain (net
of any losses) realized from any such investment of funds on deposit in the
Distribution Account shall be for the benefit of the Trustee as compensation for
its duties hereunder and shall be retained by it monthly as provided herein. The
amount of any losses realized in the GreenPoint Custodial Account, the BANA
Custodial Account, the National City Mortgage Custodial Account or the
Distribution Account incurred in any such account in respect of any such
investments shall promptly be deposited by GreenPoint in the GreenPoint
Custodial Account, BANA in the BANA Custodial Account, National City Mortgage in
the National City Mortgage Custodial Account or by the Trustee in the
Distribution Account, as applicable.
(d) A Servicer shall give notice to the Trustee and the NIMS Insurer
of any proposed change of the location of the Servicer Custodial Account
maintained by such Servicer not later than 30 days and not more than 45 days
prior to any change thereof. The Trustee shall give notice to the Servicers,
each Rating Agency, the NIMS Insurer and the Depositor of any proposed change of
the location of the Distribution Account not later than 30 days after and not
more than 45 days prior to any change thereof. The creation of any Servicer
Custodial Account and the Distribution Account shall be evidenced by a
certification substantially in the form of Exhibit F hereto.
(e) The Trustee shall designate each of Sub-Account 1, Sub-Account
2, Sub-Account 3, the Upper-Tier Certificate Sub-Account and the Group 3
Upper-Tier Sub-Account as a sub-account of the Distribution Account. On each
Distribution Date, the Trustee shall, from funds available on deposit in the
Distribution Account (and deemed on deposit in Sub-Account 1 and Sub-Account 2,
as applicable), be deemed to deposit into the Upper-Tier Sub-Account, the
Lower-Tier Distribution Amount. On each Distribution Date, the Trustee shall,
from funds available on deposit in the Distribution Account (and deemed on
deposit in Sub-Account 3), be deemed to deposit into the Group 3 Upper-Tier
Sub-Account, the Group 3 Lower-Tier Distribution Amount.
(f) (i) The Trustee shall establish and maintain the Reserve
Account, which account shall be held in trust for the benefit of the Holders of
the Offered Group 3 Certificates. The Trustee shall deposit in the Reserve
Account on the date received by it, any Yield Maintenance Agreement Payments
received from the Yield Maintenance Agreement Provider for the related
Distribution Date. Funds on deposit in the Reserve Account shall remain
uninvested. On each Distribution Date, the Trustee shall withdraw from the
Reserve Account any Yield Maintenance Agreement Payments and apply them in the
following order of priority:
(A) to the Offered Group 3 Certificates, any remaining unpaid
Cap Carryover Amounts for such classes for such Distribution Date
(after distributions pursuant to Section 5.03(c) hereof, first,
concurrently, to the Class 3-A Certificates (other than the Class
3-A-3 Certificates), pro rata, and then, sequentially, to the
Components, the Class 3-M-1 Certificates, the Class 3-M-2
Certificates, the Class 3-B-1 Certificates, the Class 3-B-2
Certificates and the Class 3-B-3 Certificates, in that order; and
(B) to the Class 3-CE Certificates, any remaining amounts on
deposit in the Reserve Account.
(ii) The Trustee shall account for the Reserve Account as an asset
of the Grantor Trust and not an asset of any REMIC created pursuant to
this Agreement. The beneficial owner of the Reserve Account is the Class
3-CE Certificateholder. For all federal tax purposes, amounts transferred
or reimbursed by the Group 3 Upper-Tier REMIC to the Reserve Account shall
be treated as distributions by the Trustee to the Class 3-CE
Certificateholder.
(iii) Any Cap Carryover Amounts paid by the Trustee pursuant to this
Section 3.09(f) to the Offered Group 3 Certificates shall be accounted for
by the Trustee as amounts paid first to the Class 3-CE Certificates and
then to the Offered Group 3 Certificates from the Grantor Trust. In
addition, the Trustee shall account for the Offered Group 3 Certificates'
rights to receive payments of Cap Carryover Amounts as rights in limited
recourse interest rate cap contracts written by the Class 3-CE
Certificates in favor of the Offered Group 3 Certificates.
(g) For federal tax return and information reporting, the right of
the Holders of the Offered Group 3 Certificates to receive payments under the
Yield Maintenance Agreements in respect of any related Yield Maintenance
Agreement Payments shall be assigned a value of zero.
(h) Any Prepayment Premiums deposited pursuant to Section 3.09(a)(v)
shall not be assets of any REMIC created hereunder, but shall be considered
assets of the Grantor Trust held by the Trustee for the benefit of the Class 3-P
Certificateholders.
Section 3.10 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.
(a) To the extent required by the related Mortgage Note and not
violative of current law, each Servicer shall segregate and hold all funds
collected and received pursuant to each Mortgage Loan serviced by such Servicer
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 "[Insert
name of Servicer], in trust for registered holders of Banc of America Funding
Corporation, Mortgage Pass-Through Certificates, Series 2005-B and various
Mortgagors." The Escrow Account shall be established with a commercial bank, a
savings bank or a savings and loan association that meets the guidelines set
forth by FNMA or FHLMC as an eligible institution for escrow accounts and which
is a member of the Automated Clearing House. In any case, the Escrow Account
shall be insured by the FDIC to the fullest extent permitted by law. Each
Servicer shall deposit in the appropriate Escrow Account on a daily basis, and
retain therein: (i) all Escrow Payments collected on account of the Mortgage
Loans serviced by such Servicer, (ii) all amounts representing proceeds of any
hazard insurance policy which are to be applied to the restoration or repair of
any related Mortgaged Property and (iii) all amounts representing proceeds of
any Primary Mortgage Insurance Policy. Nothing herein shall require any Servicer
to compel a Mortgagor to establish an Escrow Account in violation of applicable
law.
(b) Withdrawals of amounts so collected from the Escrow Accounts may
be made by the related 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 such Servicer out of
related Escrow Payments made with respect to a Mortgage Loan for any Servicing
Advance made by such Servicer pursuant to Section 3.10(c) with respect to such
Mortgage Loan, (iii) to refund to any Mortgagor any sums determined to be
overages, (iv) for transfer to the related Servicer Custodial Account upon
default of a Mortgagor or in accordance with the terms of the related Mortgage
Loan and if permitted by applicable law, (v) for application to restore or
repair the Mortgaged Property, (vi) to pay to the Mortgagor, to the extent
required by law, any interest paid on the funds deposited in the Escrow Account,
(vii) to pay to itself any interest earned on funds deposited in the Escrow
Account (and not required to be paid to the Mortgagor), (viii) to the extent
permitted under the terms of the related Mortgage Note and applicable law, to
pay late fees with respect to any Monthly Payment which is received after the
applicable grace period, (ix) to withdraw suspense payments that are deposited
into the Escrow Account, (x) to withdraw any amounts inadvertently deposited in
the Escrow Account or (xi) to clear and terminate the Escrow Account upon the
termination of this Agreement in accordance with Section 10.01. Any Escrow
Account shall not be a part of the Trust Estate.
(c) With respect to each Mortgage Loan it services, each 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. Each 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 each 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 related Servicer shall
determine that any such payments are made by the Mortgagor. The related 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 related Servicer shall advance any such payments that are not
timely paid, but such Servicer shall be required so to advance only to the
extent that such Servicing Advances, in the good faith judgment of such
Servicer, will be recoverable by such Servicer out of Insurance Proceeds,
Liquidation Proceeds or otherwise.
Section 3.11 Access of Trustee and NIMS Insurer to Certain
Documentation and Information Regarding the Mortgage Loans.
The Servicers shall afford the Trustee and the NIMS Insurer
reasonable access to all records and documentation regarding the Mortgage Loans
and all accounts, insurance information and other matters relating to this
Agreement, such access being afforded without charge, but only upon reasonable
request and during normal business hours at the office designated by the
applicable Servicer.
Section 3.12 Permitted Withdrawals from the Servicer Custodial
Accounts and the Distribution Account.
(a) Each Servicer may from time to time make withdrawals from the
applicable Servicer Custodial Account, for the following purposes:
(i) to pay to the related Servicer (to the extent not previously
retained), the Servicing Compensation to which it is entitled pursuant to
Section 3.18;
(ii) to reimburse the related Servicer or the Trustee for
unreimbursed Advances made by it, such right of reimbursement pursuant to
this clause (ii) being limited first to amounts received on the Mortgage
Loans serviced by such Servicer in the related Loan Group in respect of
which any such Advance was made (including amounts received in respect of
BPP Mortgage Loan Payments for such Mortgage Loans) and then limited to
amounts received on all the Mortgage Loans serviced by such Servicer;
(iii) to reimburse the Servicers for any Nonrecoverable Advance
previously made, such right of reimbursement pursuant to this clause (iii)
being limited first to amounts received on the Mortgage Loans serviced by
such Servicer in the same Loan Group as the Mortgage Loan(s) in respect of
which such Nonrecoverable Advance was made and then limited to amounts
received on all the Mortgage Loans serviced by such Servicer;
(iv) to reimburse the related Servicer for Insured Expenses from the
related Insurance Proceeds;
(v) to pay to the purchaser, with respect to each Mortgage Loan or
REO Property that has been purchased pursuant to Section 2.02, 2.04, 2.09
or 3.15(b), all amounts received thereon after the date of such purchase;
(vi) to reimburse the related Servicer or the Depositor for expenses
incurred by any of them and reimbursable pursuant to this Agreement,
including but not limited to, Section 3.02 and Section 7.03;
(vii) to withdraw any amount deposited in the related Servicer
Custodial Account and not required to be deposited therein;
(viii) on or prior to the Remittance Date, to withdraw an amount
equal to the such Servicer's portion of the Pool Distribution Amounts, the
Group 3 Interest Remittance Amount, the Group 3 Principal Remittance
Amount and any Monthly Excess Cashflow Amount for such Distribution Date,
to the extent on deposit, and remit such amount in immediately available
funds to the Trustee for deposit in the Distribution Account; and
(ix) to clear and terminate the related Servicer Custodial Account
upon termination of this Agreement pursuant to Section 10.01.
Each Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the related Servicer Custodial Account pursuant to clauses (i),
(ii), (iv) and (v). Each Servicer shall keep and maintain such separate
accounting for each Mortgage Loan it services in each Loan Group. Prior to
making any withdrawal from the related Servicer Custodial Account pursuant to
clause (iii), each Servicer shall deliver to the Trustee an Officer's
Certificate of a Servicing Officer indicating the amount of any previous Advance
determined by such Servicer to be a Nonrecoverable Advance and identifying the
related Mortgage Loan(s) and their respective portions of such Nonrecoverable
Advance.
In connection with any failure by a Servicer to make any remittance
required to be made by such Servicer to the Distribution Account on the day and
by the time such remittance is required to be made under this Agreement (without
giving effect to any grace or cure period), such Servicer shall pay the Trustee
for the account of the Trustee interest at the rate published in The Wall Street
Journal as the "Prime Rate" on any amount not timely remitted from and including
the day such remittance was required to be made to, but not including, the day
on which such remittance was actually made.
(b) The Trustee shall withdraw funds from the Distribution Account
for distributions to Certificateholders in the manner specified in this
Agreement. In addition, the Trustee may from time to time make withdrawals from
the Distribution Account for the following purposes:
(i) to pay to itself any amounts due under this Agreement for the
related Distribution Date including, to the extent not previously paid
pursuant to Section 3.12(a), to reimburse itself for any Nonrecoverable
Advance previously made;
(ii) to pay to itself as its compensation, earnings on or investment
income with respect to funds in the Distribution Account;
(iii) to withdraw and return to the related Servicer any amount
deposited in the Distribution Account and not required to be deposited
therein; and
(iv) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 10.01.
(c) On each Distribution Date, funds on deposit in the Distribution
Account and deemed to be on deposit in the Upper-Tier Certificate Sub-Account
shall be used to make payments on the Regular Certificates (other than the
Offered Group 3 Certificates) and the Class 1-A-R Certificate in respect of the
Class 1-UR Interest as provided in Sections 5.01 and 5.02. On each Distribution
Date, funds on deposit in the Distribution Account and deemed to be on deposit
in the Group 3 Upper-Tier Certificate Sub-Account shall be used to make payments
on the Offered Group 3 Certificates, the Class 3-CE Certificates, the Class 3-P
Certificates and the Class 1-A-R Certificate in respect of the Class 3-UR
Interest as provided in Section 5.03. The Distribution Account shall be cleared
and terminated upon termination of this Agreement pursuant to Section 10.01.
Section 3.13 Maintenance of Hazard Insurance and Other Insurance.
Each Servicer shall cause to be maintained for each Mortgage Loan
serviced by such Servicer, fire and hazard insurance with extended coverage
customary in the area where the Mortgaged Property is located in an amount which
is at least equal to the lesser of (a) the full insurable value of the Mortgaged
Property or (b) the greater of (i) the outstanding principal balance owing on
the Mortgage Loan and (ii) an amount such that the proceeds of such insurance
shall be sufficient to avoid the application to the Mortgagor or loss payee of
any coinsurance clause under the policy. If the Mortgaged Property is in an area
identified in the Federal Register by the Federal Emergency Management Agency as
having special flood hazards (and such flood insurance has been made available)
the related Servicer will cause to be maintained a flood insurance policy
meeting the requirements of the current guidelines of the Federal Insurance
Administration and the requirements of FNMA or FHLMC. Each Servicer shall also
maintain on REO Property serviced by such Servicer, 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 a Servicer under any such policies (other than
amounts to be deposited in an Escrow Account and applied to the restoration or
repair of the property subject to the related Mortgage or property acquired in
liquidation of the Mortgage Loan, or to be released to the Mortgagor in
accordance with Customary Servicing Procedures) shall be deposited in the
related Servicer Custodial Account, subject to withdrawal pursuant to Section
3.12(a). It is understood and agreed that no earthquake or other additional
insurance need be required by a 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 related Servicer, and shall provide for at least 30
days prior written notice of any cancellation, reduction in amount or material
change in coverage to such Servicer.
The hazard insurance policies for each Mortgage Loan secured by a
unit in a condominium development or planned unit development shall be
maintained with respect to such Mortgage Loan and the related development in a
manner which is consistent with FNMA requirements.
Notwithstanding the foregoing, any Servicer may maintain a blanket
policy insuring against hazard losses on all of the Mortgaged Properties
relating to the Mortgage Loans serviced by such Servicer in lieu of maintaining
the required hazard insurance policies for each Mortgage Loan and may maintain a
blanket policy insuring against special flood hazards in lieu of maintaining any
required flood insurance. Any such blanket policies shall (A) be consistent with
prudent industry standards, (B) name the related Servicer as loss payee, (C)
provide coverage in an amount equal to the aggregate unpaid principal balance on
the related Mortgage Loans without co-insurance, and (D) otherwise comply with
the requirements of this Section 3.13. Any such blanket policy may contain a
deductible clause; provided that if any Mortgaged Property is not covered by a
separate policy otherwise complying with this Section 3.13 and a loss occurs
with respect to such Mortgaged Property which loss would have been covered by
such a policy, the related Servicer shall deposit in the related Servicer
Custodial Account the difference, if any, between the amount that would have
been payable under a separate policy complying with this Section 3.13 and the
amount paid under such blanket policy.
Section 3.14 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
(a) Except as otherwise provided in this Section 3.14, when any
Mortgaged Property subject to a Mortgage has been conveyed by the Mortgagor, the
related 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, a 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 related 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 related
Servicer is authorized, subject to Section 3.14(b), to take or enter into an
assumption and modification agreement from or with the Person to whom such
Mortgaged Property has been or is about to be conveyed, pursuant to which such
Person becomes liable under the Mortgage Note and, unless prohibited by
applicable state law, the Mortgagor remains liable thereon; provided that the
Mortgage Loan shall continue to be covered (if so covered before the related
Servicer enters such agreement) by the applicable Required Insurance Policies.
The related Servicer, subject to Section 3.14(b), is also authorized with the
prior approval of the insurers under any Required Insurance Policies to enter
into a substitution of liability agreement with such Person, pursuant to which
the original Mortgagor is released from liability and such Person is substituted
as Mortgagor and becomes liable under the Mortgage Note. Notwithstanding the
foregoing, a Servicer shall not be deemed to be in default under this Section
3.14 by reason of any transfer or assumption which such Servicer reasonably
believes it is restricted by law from preventing, for any reason whatsoever.
(b) Subject to a Servicer's duty to enforce any due-on-sale clause
to the extent set forth in Section 3.14(a), in any case in which a Mortgaged
Property has been conveyed to a Person by a Mortgagor, and such Person is to
enter into an assumption agreement or modification agreement or supplement to
the Mortgage Note or Mortgage that requires the signature of the Trustee, or if
an instrument of release signed by the Trustee is required releasing the
Mortgagor from liability on the Mortgage Loan, the related Servicer shall
prepare and deliver or cause to be prepared and delivered to the Trustee for
signature and shall direct, in writing, the Trustee to execute the assumption
agreement with the Person to whom the Mortgaged Property is to be conveyed and
such modification agreement or supplement to the Mortgage Note or Mortgage or
other instruments as are reasonable or necessary to carry out the terms of the
Mortgage Note or Mortgage or otherwise to comply with any applicable laws
regarding assumptions or the transfer of the Mortgaged Property to such Person.
In no event shall the Trustee incur liability for executing any document under
this Section 3.14 at the direction of a Servicer. In connection with any such
assumption, no material term of the Mortgage Note may be changed. In addition,
the substitute Mortgagor and the Mortgaged Property must be acceptable to the
related Servicer in accordance with its underwriting standards as then in
effect. Together with each such substitution, assumption or other agreement or
instrument delivered to the Trustee for execution, the related Servicer shall
deliver an Officer's Certificate signed by a Servicing Officer stating that the
requirements of this subsection have been met. Each Servicer shall notify the
Trustee that any such substitution or assumption agreement has been completed by
forwarding to the Trustee (or at the direction of the Trustee, the Custodian)
the original of such substitution or assumption agreement, which in the case of
the original shall be added to the related Mortgage File and shall, for all
purposes, be considered a part of such Mortgage File to the same extent as all
other documents and instruments constituting a part thereof. Any fee collected
by a Servicer for entering into an assumption or substitution of liability
agreement may be retained by such Servicer as additional Servicing Compensation.
Notwithstanding the foregoing, to the extent permissible under applicable law
and at the request of a Servicer, the Trustee shall execute and deliver to such
Servicer any powers of attorney and other documents prepared by such Servicer
that are reasonably necessary or appropriate to enable such Servicer to execute
any assumption agreement or modification agreement required to be executed by
the Trustee under this Section 3.14.
Section 3.15 Realization Upon Defaulted Mortgage Loans; REO
Property.
(a) Subject to Section 3.22, each Servicer shall use reasonable
efforts to foreclose upon or otherwise comparably convert the ownership of
Mortgaged Properties securing such of the Mortgage Loans serviced by such
Servicer 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, each 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 Mortgage Loan after reimbursement to itself of such expenses
and (ii) that such expenses will be recoverable to it through proceeds of the
liquidation of the Mortgage Loan (respecting which it shall have priority for
purposes of withdrawals from the related Servicer Custodial Account). Any such
expenditures shall constitute Servicing Advances for purposes of this Agreement.
The decision of a Servicer to foreclose on a defaulted Mortgage Loan
shall be subject to a determination by such Servicer that the proceeds of such
foreclosure would exceed the costs and expenses of bringing such a proceeding.
With respect to any REO Property, the deed or certificate of sale
shall be taken in the name of the Trust for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. The
name of the Trust shall be placed on the title to such REO Property. The related
Servicer shall ensure that the title to such REO Property references this
Agreement. Pursuant to its efforts to sell such REO Property, the related
Servicer shall either itself or through an agent selected by such Servicer
manage, conserve, protect and operate such REO Property in the same manner that
it manages, conserves, protects and operates other foreclosed property for its
own account and in the same manner that similar property in the same locality as
the REO Property is managed. Incident to its conservation and protection of the
interests of the Certificateholders, such Servicer may rent the same, or any
part thereof, as such Servicer deems to be in the best interest of the
Certificateholders for the period prior to the sale of such REO Property. Each
Servicer shall prepare for and deliver to the Trustee a statement with respect
to each REO Property serviced by such Servicer that has been rented, if any,
showing the aggregate rental income received and all expenses incurred in
connection with the management and maintenance of such REO Property at such
times as is necessary to enable the Trustee to comply with the reporting
requirements of the REMIC Provisions; provided, however, that a 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 related
Servicer Custodial Account no later than the close of business on each
Determination Date. Each Servicer shall perform, with respect to the Mortgage
Loans serviced by such Servicer, the tax reporting and withholding required by
Sections 1445 and 6050J of the Code with respect to foreclosures and
abandonments, the tax reporting required by Section 6050H of the Code with
respect to the receipt of mortgage interest from individuals and, if required by
Section 6050P of the Code with respect to the cancellation of indebtedness by
certain financial entities, by preparing such tax and information returns as may
be required, in the form required.
If the Trust acquires any Mortgaged Property as described above or
otherwise in connection with a default or a default which is reasonably
foreseeable on a Mortgage Loan, the related Servicer shall dispose of such
Mortgaged Property prior to the end of the third calendar year following the
year of its acquisition by the Trust (such period, the "REO Disposition Period")
unless (A) the Trustee shall have been supplied by such 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 created hereunder or cause the Trust Estate to fail to
qualify as four REMICs at any time that any Certificates are outstanding, or (B)
the Trustee (at such Servicer's expense), or such Servicer shall have applied
for, prior to the expiration of the REO Disposition Period, an extension of the
REO Disposition Period in the manner contemplated by Section 856(e)(3) of the
Code. If such an Opinion of Counsel is provided or such an exemption is
obtained, the Trust may continue to hold such Mortgaged Property (subject to any
conditions contained in such Opinion of Counsel) for the applicable period.
Notwithstanding any other provision of this Agreement, no Mortgaged Property
acquired by the Trust shall be rented (or allowed to continue to be rented) or
otherwise used for the production of income by or on behalf of the Trust in such
a manner or pursuant to any terms that would (i) cause such Mortgaged Property
to fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code or (ii) subject any REMIC created hereunder to the
imposition of any federal, state or local income taxes on the income earned from
such Mortgaged Property under Section 860G(c) of the Code or otherwise, unless
the related Servicer has agreed to indemnify and hold harmless the Trust with
respect to the imposition of any such taxes. Each Servicer shall identify to the
Trustee any Mortgaged Property relating to a Mortgage Loan serviced by such
Servicer held by the Trust for 30 months for which no plans to dispose of such
Mortgaged Property by such Servicer have been made. After delivery of such
identification, the related 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 related Servicer for expenses incurred (including any
property or other taxes) in connection with such management and net of
unreimbursed Servicing Fees, Periodic Advances and Servicing Advances, shall be
applied to the payment of principal of and interest on the related defaulted
Mortgage Loans (solely for the purposes of allocating principal and interest,
interest shall be treated as accruing as though such Mortgage Loans were still
current) and all such income shall be deemed, for all purposes in this
Agreement, to be payments on account of principal and interest on the related
Mortgage Notes and shall be deposited into the related Servicer Custodial
Account. To the extent the net income received during any calendar month is in
excess of the amount attributable to amortizing principal and accrued interest
at the related Mortgage Interest Rate on the related Mortgage Loan for such
calendar month, such excess shall be considered to be a partial prepayment of
principal of the related Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well as any
income from an REO Property, will be applied in the following order of priority:
first, to reimburse the related Servicer for any related unreimbursed Servicing
Advances and Servicing Fees; second, to reimburse the related Servicer for any
unreimbursed Periodic Advances and to reimburse the related Servicer Custodial
Account for any Nonrecoverable Advances (or portions thereof) that were
previously withdrawn by the related Servicer pursuant to Section 3.12(a)(iii)
that related to such Mortgage Loan; third, to accrued and unpaid interest (to
the extent no Periodic Advance has been made for such amount or any such
Periodic Advance has been reimbursed) on the Mortgage Loan or related REO
Property, at the Mortgage Interest Rate to the Due Date occurring in the month
in which such amounts are required to be distributed; and fourth, as a recovery
of principal of the Mortgage Loan. Excess Proceeds, if any, from the liquidation
of a Liquidated Mortgage Loan will be retained by the related Servicer as
additional Servicing Compensation pursuant to Section 3.18.
(b) On the second Business Day prior to the related Distribution
Date, each Servicer shall notify the Depositor and the NIMS Insurer of any
Mortgage Loan which is 180 days or more delinquent. The Depositor shall be
entitled, at its option, or pursuant to direction from the NIMS Insurer, to
repurchase any such delinquent Mortgage Loan from the Trust Estate if in the
Depositor's (or NIMS Insurer's) judgment, the default is not likely to be cured
by the Mortgagor. The purchase price for any such Mortgage Loan shall be 100% of
the unpaid principal balance of such Mortgage Loan plus accrued interest thereon
at the Mortgage Interest Rate through the last day of the month in which such
repurchase occurs. The Depositor shall notify the related Servicer of its intent
to repurchase such Mortgage Loan. Upon the receipt of such purchase price, the
Trustee, or the Custodian on behalf of the Trustee, shall promptly release to
the Depositor or the NIMS Insurer, as the case may be, the Mortgage File
relating to the Mortgage Loan being repurchased.
Section 3.16 Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by a
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the related Servicer will immediately notify the
Trustee (or, at the direction of the Trustee, the Custodian) by delivering, or
causing to be delivered, two copies (one of which will be returned to such
Servicer with the Mortgage File) of a Request for Release (which may be
delivered in an electronic format acceptable to the Trustee and the related
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 related Servicer. The Trustee shall at the related Servicer's direction
execute and deliver to such Servicer the request for reconveyance, deed of
reconveyance or release or satisfaction of mortgage or such instrument releasing
the lien of the Mortgage, in each case provided by such Servicer, together with
the Mortgage Note with written evidence of cancellation thereon. If the Mortgage
has been recorded in the name of MERS or its designee, the related Servicer
shall take all necessary action to reflect the release of the Mortgage on the
records of MERS. Expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the related
Mortgagor. From time to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including for such purpose collection under
any policy of flood insurance, any fidelity bond or errors or omissions policy,
or for the purposes of effecting a partial release of any Mortgaged Property
from the lien of the Mortgage or the making of any corrections to the Mortgage
Note or the Mortgage or any of the other documents included in the Mortgage
File, the Trustee or the Custodian, as applicable, shall, upon delivery to the
Trustee (or, at the direction of the Trustee, the Custodian) of a Request for
Release signed by a Servicing Officer, release the Mortgage File within seven
Business Days to the related Servicer. Subject to the further limitations set
forth below, the related Servicer shall cause the Mortgage File so released to
be returned to the Trustee or the Custodian, as applicable, when the need
therefor by such Servicer no longer exists, unless the Mortgage Loan is
liquidated and the proceeds thereof are deposited in the related Servicer
Custodial Account, in which case the related Servicer shall deliver to the
Trustee or the Custodian, as applicable, a Request for Release, signed by a
Servicing Officer.
The Trustee shall execute and deliver to any Servicer any powers of
attorney and other documents prepared by such Servicer that are reasonably
necessary or appropriate in the judgment of the Trustee to enable such Servicer
to carry out its servicing and administrative duties under this Agreement, upon
the request of the such Servicer. In addition, upon prepayment in full of any
Mortgage Loan or the receipt of notice that funds for such purpose have been
placed in escrow, the related Servicer is authorized to give, as
attorney-in-fact for the Trustee and the mortgagee under the Mortgage, an
instrument of satisfaction (or Assignment of Mortgage without recourse)
regarding the Mortgaged Property relating to such Mortgage Loan, which
instrument of satisfaction or Assignment of Mortgage, as the case may be, shall
be delivered to the Person entitled thereto against receipt of the prepayment in
full. If the Mortgage is registered in the name of MERS or its designee, the
applicable 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
related Servicer may deliver or cause to be delivered to the Trustee, for
signature, as appropriate, any court pleadings, requests for trustee's sale or
other documents necessary to effectuate such foreclosure or any legal action
brought to obtain judgment against the Mortgagor on the Mortgage Note or the
Mortgage or to obtain a deficiency judgment or to enforce any other remedies or
rights provided by the Mortgage Note or the Mortgage or otherwise available at
law or in equity.
Section 3.17 Documents, Records and Funds in Possession of the
Servicers to be Held for the Trustee.
Each Servicer shall transmit to the Trustee or, at the direction of
the Trustee, the Custodian, as required by this Agreement all documents and
instruments in respect of a Mortgage Loan serviced by such Servicer coming into
the possession of such Servicer from time to time and shall account fully to the
Trustee for any funds received by such Servicer or which otherwise are collected
by such Servicer as Liquidation Proceeds or Insurance Proceeds in respect of any
Mortgage Loan serviced by such Servicer. The documents constituting the
Servicing File shall be held by the related Servicer as custodian and bailee for
the Trustee. All Mortgage Files and funds collected or held by, or under the
control of, a Servicer in respect of any Mortgage Loans, whether from the
collection of principal and interest payments or from Liquidation Proceeds,
including but not limited to, any funds on deposit in the related Servicer
Custodial Account, shall be held by such 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. Each Servicer also
agrees that it shall not knowingly create, incur or subject any Mortgage File or
any funds that are deposited in the related Servicer Custodial Account,
Distribution Account or any Escrow Account, or any funds that otherwise are or
may become due or payable to the Trustee for the benefit of the
Certificateholders, to any claim, lien, security interest, judgment, levy, writ
of attachment or other encumbrance created by such Servicer, or assert by legal
action or otherwise any claim or right of setoff against any Mortgage File or
any funds collected on, or in connection with, a Mortgage Loan, except, however,
that each Servicer shall be entitled to set off against and deduct from any such
funds any amounts that are properly due and payable to such Servicer under this
Agreement.
Section 3.18 Servicing Compensation.
Each Servicer shall be entitled out of each payment of interest on a
Mortgage Loan (or portion thereof) serviced by such Servicer and included in the
Trust Estate to retain or withdraw from the related Servicer Custodial Account
an amount equal to the Servicing Fee for such Distribution Date; provided,
however, that the aggregate Servicing Fee for a Servicer relating to the
Mortgage Loans serviced by such Servicer shall be reduced (but not below zero)
by an amount equal to the Compensating Interest.
Any additional Servicing Compensation shall be retained by the
related Servicer to the extent not required to be deposited in the related
Servicer Custodial Account pursuant to Section 3.09(a). Each 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 each
Servicer for such Distribution Date shall be reduced (but not below zero) by an
amount equal to the lesser of (a) the aggregate Servicing Fee payable to such
Servicer for such Distribution Date for the Mortgage Loans serviced by such
Servicer and (b) the aggregate Prepayment Interest Shortfall for the Mortgage
Loans serviced by such Servicer for such Distribution Date (any such reduction,
"Compensating Interest"). To the extent that Compensating Interest for a
Servicer is calculated pursuant to clause (a) of the previous sentence, such
Compensating Interest shall be allocated to the CB Crossed Loan Groups in the
aggregate and Loan Group 3, pro rata, based on the aggregate Prepayment Interest
Shortfalls for such Distribution Date on the Mortgage Loans in such Loan Groups
or Loan Group, as the case may be, serviced by such Servicer.
Section 3.19 Annual Statement as to Compliance.
Each Servicer shall deliver to the Trustee (and the Trustee will
forward to the Trustee, the NIMS Insurer and each Rating Agency), no later than
March 20 following the end of each calendar year commencing with March 2006, an
Officer's Certificate stating, as to the signer thereof, that (a) a review of
the activities of such Servicer during the preceding calendar year and of the
performance of such Servicer under this Agreement has been made under such
officer's supervision, and (b) to the best of such officer's knowledge, based on
such review, such Servicer has fulfilled all its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof.
Section 3.20 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
No later than March 20 following the end of each calendar year
commencing with March 2006, each Servicer shall, at its own expense, cause a
firm of independent public accountants (who may also render other services to
such Servicer or any affiliate thereof) which is a member of the American
Institute of Certified Public Accountants to furnish a statement to the Trustee
to the effect that such firm has with respect to such Servicer's overall
servicing operations, examined such operations in accordance with the
requirements of the Uniform Single Attestation Program for Mortgage Bankers,
stating such firm's conclusions relating thereto. The Trustee shall provide a
copy of each such report to the NIMS Insurer.
Section 3.21 Advances.
Each Servicer shall determine on or before each Servicer Advance
Date whether it is required to make a Periodic Advance pursuant to the
definition thereof. If a Servicer determines it is required to make a Periodic
Advance, it shall, on or before the Servicer Advance Date, either (a) deposit
into the related Servicer Custodial Account an amount equal to the Advance
and/or (b) make an appropriate entry in its records relating to the related
Servicer Custodial Account that any portion of the Amount Held for Future
Distribution with respect to a Loan Group in such Servicer Custodial Account has
been used by such Servicer in discharge of its obligation to make any such
Periodic Advance on a Mortgage Loan in such Loan Group. Any funds so applied
shall be replaced by such Servicer by deposit in the related Servicer Custodial
Account no later than the close of business on the Business Day preceding the
next Servicer Advance Date. If a Servicer fails to make any required Periodic
Advance, the Trustee shall make such Periodic Advance not later than the
Business Day preceding each related Distribution Date for the period prior to
the appointment of a successor Servicer. Each Servicer and the Trustee shall be
entitled to be reimbursed from the related Servicer Custodial Account and, in
the case of the Trustee, from the Distribution Account, for all Periodic
Advances of its own funds made pursuant to this Section 3.21 as provided in
Section 3.12(a) or (b). The obligation to make Periodic Advances with respect to
any Mortgage Loan shall continue until the ultimate disposition of the REO
Property or Mortgaged Property relating to such Mortgage Loan. Each Servicer
shall inform the Trustee of the amount of the Periodic Advance to be made by
such Servicer with respect to each Loan Group on each Servicer Advance Date no
later than the related Remittance Date.
Each Servicer shall deliver to the Trustee on the related Servicer
Advance Date an Officer's Certificate of a Servicing Officer indicating the
amount of any proposed Periodic Advance determined by such Servicer to be a
Nonrecoverable Advance. Notwithstanding anything to the contrary, neither the
related Servicer nor the Trustee shall be required to make any Advance that
would be a Nonrecoverable Advance.
Section 3.22 Modifications, Waivers, Amendments and Consents.
(a) Subject to this Section 3.22, each Servicer may agree to any
modification, waiver, forbearance, or amendment of any term of any Mortgage Loan
serviced by such Servicer without the consent of the Trustee or any
Certificateholder. All modifications, waivers, forbearances or amendments of any
Mortgage Loan shall be in writing and shall be consistent with Customary
Servicing Procedures.
(b) A Servicer shall not agree to enter into, and shall not enter
into, any modification, waiver (other than a waiver referred to in Section 3.14,
which waiver, if any, shall be governed by Section 3.14), forbearance or
amendment of any term of any Mortgage Loan if such modification, waiver,
forbearance, or amendment would:
(i) affect the amount or timing of any related payment of principal,
interest or other amount payable thereunder;
(ii) in such Servicer's judgment, materially impair the security for
such Mortgage Loan or reduce the likelihood of timely payment of amounts
due thereon; or
(iii) otherwise constitute a "significant modification" within the
meaning of Treasury Regulations Section 1.860G-2(b);
unless, in the case of clauses (ii) and (iii) above, (A) such Mortgage Loan is
90 days or more past due or (B) such Servicer delivers to the Trustee an Opinion
of Counsel to the effect that such modification, waiver, forbearance or
amendment would not affect the REMIC status of any REMIC created hereunder and,
in either case, such modification, waiver, forbearance or amendment is
reasonably likely, in the related Servicer's judgment, to produce a greater
recovery with respect to such Mortgage Loan than would liquidation. Subject to
Customary Servicing Procedures, any Servicer may permit a forbearance for a
Mortgage Loan serviced by such Servicer which in such Servicer's judgment is
subject to imminent default.
(c) Each 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 such Servicer's discretion pursuant to the Mortgage
Loan and is permitted by the terms of this Agreement, require that such
Mortgagor pay to such 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 such
Servicer, which amount shall be retained by such Servicer as additional
Servicing Compensation.
(d) Each Servicer shall notify the Trustee, in writing, of any
modification, waiver, forbearance or amendment of any term of any Mortgage Loan
serviced by such Servicer 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 related Servicer (i) shall deliver to the
Trustee (or, at the direction of the Trustee, the Custodian) a copy thereof and
(ii) shall deliver to the Trustee (or, at the direction of the Trustee, the
Custodian) such document, with evidence of notification upon receipt thereof
from the public recording office.
Section 3.23 Reports to the Securities and Exchange Commission.
(a) The Trustee and the Servicers shall reasonably cooperate with
the Depositor in connection with the Trust's satisfying its reporting
requirements under the Exchange Act. Without limiting the generality of the
foregoing, the Trustee shall prepare on behalf of the Trust any monthly Current
Reports on Form 8-K (each, a "Monthly Form 8-K") (or other comparable form) and
Annual Reports on Form 10-K (each, a "Form 10-K") customary for similar
securities as required by the Exchange Act and the rules and regulations of the
Securities and Exchange Commission thereunder, and the Trustee shall sign and
file (via the Securities and Exchange Commission's Electronic Data Gathering and
Retrieval System) such Forms (other than any Annual Report on Form 10-K, which
shall be signed by the Depositor) on behalf of the Trust.
(b) Each Monthly Form 8-K shall be filed by the Trustee within 15
days after each Distribution Date, including a copy of the monthly statement to
Certificateholders delivered pursuant to Section 5.06(b) (each, a "Distribution
Date Statement") for such Distribution Date as an exhibit thereto. On or prior
to March 30th of each year (or such earlier date as may be required by the
Exchange Act and the rules and regulations of the Securities and Exchange
Commission), commencing in the calendar year following the date of this
Agreement, the Trustee shall file a Form 10-K, in substance as required by
applicable law or applicable Securities and Exchange Commission staff's
interpretations. Such Form 10-K shall include as exhibits each Servicer's annual
statement of compliance described under Section 3.19 and the accountants'
reports referenced under Section 3.20, in each case, to the extent they have
been timely delivered to the Trustee. If they are not so timely delivered, the
Trustee shall file an amended Form 10-K including such documents as exhibits
reasonably promptly after they are delivered to the Trustee. The Trustee shall
have no liability with respect to any failure to properly prepare or file such
periodic reports resulting from or relating to the Trustee's inability or
failure to obtain any information not resulting from its own negligence, willful
misconduct or bad faith. The Form 10-K shall also include a certification in the
form attached hereto as Exhibit M (the "Certification"), which shall be signed
by a senior officer of the Depositor in charge of securitization. The Depositor
shall deliver the Certification to the Trustee three (3) Business Days prior to
the latest date on which the Form 10-K may be timely filed. The Trustee, the
Depositor and the Servicers shall reasonably cooperate to enable the Securities
and Exchange Commission requirements with respect to the Trust to be met in the
event that the Securities and Exchange Commission issues additional interpretive
guidelines or promulgates rules or regulations, or in the event of any other
change of law that would require reporting arrangements or the allocation of
responsibilities with respect thereto, as described in this Section 3.23, to be
conducted or allocated in a different manner.
(c) Prior to the latest date on which the Form 10-K may be timely
filed each year, the Trustee shall sign and deliver to the Depositor a
certification (in the form attached hereto as Exhibit N) for the benefit of the
Depositor and its officers, directors and affiliates (provided, however, that
the Trustee shall not undertake an analysis of the accountant's report attached
as an exhibit to the Form 10-K). In addition, the Trustee shall indemnify and
hold harmless the Depositor, each person, if any, who "controls" the Depositor
within the meaning of the 1933 Act, as amended and their respective officers,
directors, agents and affiliates (collectively, the "Depositor Indemnified
Parties") from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other costs
and expenses arising out of or based upon any inaccuracy in the certification
provided by the Trustee pursuant to this Section 3.23(c), any breach by the
Trustee or any of its officers, directors, agents or affiliates of its
obligations under this Section 3.23(c) or any material misstatements or omission
contained in the certification delivered pursuant to this Section 3.23(c) or the
Trustee's negligence, bad faith or willful misconduct in connection therewith.
If the indemnification provided for herein is unavailable or insufficient to
hold harmless the Depositor Indemnified Parties, then the Trustee agrees that it
shall contribute to the amount paid or payable by such Depositor Indemnified
Parties as a result of the losses, claims, damages or liabilities of such
Depositor Indemnified Parties in such proportion as is appropriate to reflect
the relative fault of such Depositor Indemnified Parties on the one hand and the
Trustee on the other in connection with a breach of the Trustee's obligations
under this Section 3.23(c), any material misstatement or omission contained in
the certification delivered pursuant to this Section 3.23(c) or the Trustee's
negligence, bad faith or willful misconduct in connection therewith. The
Servicers hereby acknowledge and agree that the Depositor and the Trustee are
relying on the Servicers' performance of their obligations under Sections 3.19
and 3.20 in order to perform their respective obligations under this Section
3.23.
(d) Prior to the latest date on which the Form 10-K may be timely
filed each year, each Servicer shall sign and deliver to the Depositor a
certification (in the form attached hereto as Exhibit O, with such modification
thereto as shall be reasonably required in connection with any changes made by
the Securities and Exchange Commission to any certification requirement under
Section 302 of the Xxxxxxxx-Xxxxx Act) for the benefit of the Depositor
Indemnified Parties. In addition, each Servicer shall indemnify and hold
harmless the Depositor Indemnified Parties from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon any
inaccuracy in the certification provided by such Servicer pursuant to this
Section 3.23(d), any breach of such Servicer's obligations under this Section
3.23(d) or such Servicer's negligence, bad faith or willful misconduct in
connection therewith. If the indemnification provided for herein is unavailable
or insufficient to hold harmless the Depositor Indemnified Parties, then such
Servicer agrees that it shall contribute to the amount paid or payable by the
Depositor Indemnified Parties as a result of the losses, claims, damages or
liabilities of the Depositor Indemnified Parties in such proportion as is
appropriate to reflect the relative fault of the Depositor Indemnified Parties
on the one hand and such Servicer on the other in connection with a breach of
such Servicer's obligations under this Section 3.23(d) or such Servicer's
negligence, bad faith or willful misconduct in connection therewith.
(e) Upon any filing with the Securities and Exchange Commission, the
Trustee shall promptly deliver to the Depositor a copy of any such executed
report, statement or information.
(f) The obligations set forth in paragraphs (a) through (e) of this
Section shall only apply with respect to periods for which the Trustee is
obligated to file reports on Form 8-K or 10-K pursuant to paragraph (b) of this
Section. Upon request of the Depositor, the Trustee shall prepare, execute and
file with the Securities and Exchange Commission a Form 15 Suspension
Notification with respect to the Trust.
ARTICLE IV
SERVICERS' CERTIFICATES
Section 4.01 Servicers' Certificates.
Each month, not later than the Business Day following each
Determination Date, each Servicer shall deliver to the Trustee a Servicer's
Certificate (in substance and format mutually acceptable to such Servicer and
the Trustee) certified by a Servicing Officer setting forth the information
necessary in order for the Trustee to perform its obligations under this
Agreement. The Trustee may conclusively rely upon the information contained in a
Servicer's Certificate for all purposes hereunder and shall have no duty to
verify or re-compute any of the information contained therein.
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01 Distributions. On each Distribution Date, based solely
on the information in the Servicers' Certificates, the Trustee shall distribute
out of the Distribution Account (to the extent funds are available therein) to
each Certificateholder of record on the related Record Date (other than as
provided in Section 10.01 respecting the final distribution) (a) by check mailed
to such Certificateholder entitled to receive a distribution on such
Distribution Date at the address appearing in the Certificate Register, or (b)
upon written request by the Holder of a Certificate (other than a Residual
Certificate), by wire transfer or by such other means of payment as such
Certificateholder and the Trustee shall agree upon, such Certificateholder's
Percentage Interest in the amount to which the related Class of Certificates is
entitled in accordance with the priorities set forth below in Section 5.02 or
Section 5.03, as applicable.
None of the Holders of any Class of Certificates, the Depositor, the
Servicers or the Trustee shall in any way be responsible or liable to Holders of
any Class of Certificates in respect of amounts properly previously distributed
on any such Class. Amounts distributed with respect to any Class of Certificates
shall be applied first to the distribution of interest thereon and then to
principal thereon.
Section 5.02 Priorities of Distributions for the Shifting Interest
Groups.
(a) On each Distribution Date, based solely on the information
contained in the Servicers' Certificates, the Trustee shall withdraw from the
Distribution Account (to the extent funds are available therein), the Pool
Distribution Amount for each Shifting Interest Loan Group, in an amount as
specified in written notices received by the Trustee from the Servicers pursuant
to Section 4.01 hereof, and shall apply such funds first, to distributions in
respect of the Uncertificated Lower-Tier Interests as specified in this Section
5.02(a) and then to distributions on the Shifting Interest Certificates.
Distributions shall be made on the Shifting Interest Certificates in the
following order of priority and to the extent of such funds, and except as set
forth below, paying Group 1 solely from the Pool Distribution Amount for Loan
Group 1, paying Group 2 solely from the Pool Distribution Amount for Loan Group
2 and paying the Class CB Certificates from the combined Pool Distribution
Amounts for Loan Group 1 and Loan Group 2, in the following order of priority
and to the extent of such funds:
(i) to each Class of Senior Certificates of such Shifting Interest
Group, an amount allocable to interest equal to the Interest Distribution
Amount for such Class and any shortfall being allocated among such Classes
in proportion to the amount of the Interest Distribution Amount that would
have been distributed in the absence of such shortfall;
(ii) to the Senior Certificates of a Shifting Interest Group, in an
aggregate amount up to the Senior Principal Distribution Amount for such
Group, such distribution to be allocated among such Classes in accordance
with Section 5.02(b);
(iii) to each Class of Class CB Certificates, subject to paragraph
(d) below, in the following order of priority:
(A) to the Class CB-1 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(B) to the Class CB-1 Certificates, an amount allocable to
principal equal to their Pro Rata Share for such Distribution Date
until the Class Certificate Balance thereof has been reduced to
zero;
(C) to the Class CB-2 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(D) to the Class CB-2 Certificates, an amount allocable to
principal equal to their Pro Rata Share for such Distribution Date
until the Class Certificate Balance thereof has been reduced to
zero;
(E) to the Class CB-3 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(F) to the Class CB-3 Certificates, an amount allocable to
principal equal to their Pro Rata Share for such Distribution Date
until the Class Certificate Balance thereof has been reduced to
zero;
(G) to the Class CB-4 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(H) to the Class CB-4 Certificates, an amount allocable to
principal equal to their Pro Rata Share for such Distribution Date
until the Class Certificate Balance thereof has been reduced to
zero;
(I) to the Class CB-5 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(J) to the Class CB-5 Certificates, an amount allocable to
principal equal to their Pro Rata Share for such Distribution Date
until the Class Certificate Balance thereof has been reduced to
zero;
(K) to the Class CB-6 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date; and
(L) to the Class CB-6 Certificates, an amount allocable to
principal equal to their Pro Rata Share for such Distribution Date
until the Class Certificate Balance thereof has been reduced to
zero; and
(iv) to the Holder of the Class 1-A-R Certificate, any remaining
Pool Distribution Amounts.
Notwithstanding the foregoing, on each Distribution Date prior to
the Senior Credit Support Depletion Date but on or after the date on which the
sum of the Class Certificate Balances of the Senior Certificates of a CB Crossed
Group has been reduced to zero, amounts otherwise distributable as Unscheduled
Principal Payments on the Class CB Certificates received with respect to the CB
Crossed Loan Group related to such CB Crossed Group will be paid as principal to
the Classes of Senior Certificates of the remaining CB Crossed Group, in
accordance with the priorities set forth for the applicable Group in (b)(i) or
(b)(ii) below, provided that on such Distribution Date (a) the CB Crossed Loan
Group Subordinate Percentage for such Distribution Date is less than twice the
initial CB Crossed Loan Group Subordinate Percentage or (b) the outstanding
principal balance of all Mortgage Loans in the CB Crossed Loan Groups
(including, for this purpose, any Mortgage Loans in foreclosure, any REO
Property and any Mortgage Loan for which the Mortgagor has filed for bankruptcy
after the Closing Date) delinquent 60 days or more (averaged over the preceding
six month period), as a percentage of the sum of the Class Certificate Balances
of the Class CB Certificates, is equal to or greater than 50%. In addition, if
on any Distribution Date the sum of the Class Certificate Balances of the Senior
Certificates of a CB Crossed Group is greater than the Adjusted Pool Amount of
the related CB Crossed Loan Group (any such Group, the "CB Undercollateralized
Group" and any such excess, the "CB Undercollateralized Amount"), all amounts
otherwise distributable as principal on the Class CB Certificates pursuant to
Section 5.02(a)(iii)(L), (J), (H), (F), (D) and (B), in that order, will be paid
as principal to the Senior Certificates of the CB Undercollateralized Group in
accordance with the priorities set forth for the applicable Group below under
(b)(i) or (b)(ii) until the sum of the Class Certificate Balances of the Senior
Certificates of the CB Undercollateralized Group equals the Adjusted Pool Amount
of the Related Loan Group. Also, the amount of any Class Unpaid Interest
Shortfalls with respect to the CB Undercollateralized Group (including any Class
Unpaid Interest Shortfalls for such Distribution Date) will be paid to the CB
Undercollateralized Group pursuant to Section 5.02(a)(i) prior to the payment of
any CB Undercollateralized Amount from amounts otherwise distributable as
principal on the Class CB Certificates pursuant to Section 5.02(a)(iii)(L), (J)
(H), (F), (D) and (B), in that order; such amount will be paid to the Senior
Certificates of such CB Undercollateralized Group up to their Interest
Distribution Amounts for such Distribution Date.
No Class of Shifting Interest Certificates will be entitled to any
distributions with respect to the amount payable pursuant to clause (ii) of the
definition of "Interest Distribution Amount" after its Class Certificate Balance
has been reduced to zero.
All distributions in respect of the Interest Distribution Amount for
a Shifting Interest Class will be applied first with respect to the amount
payable pursuant to clause (i) of the definition of "Interest Distribution
Amount," and second with respect to the amount payable pursuant to clause (ii)
of such definition.
On each Distribution Date, the Trustee shall distribute any
Reimbursement Amounts received with respect to the Shifting Interest Loan Groups
sequentially to the Classes of Shifting Interest Certificates then outstanding
which bore the loss to which such Reimbursement Amount relates beginning with
the most senior of such Classes of Shifting Interest Certificates, up to, with
respect to each Class, the amount of loss borne by such Class. Any Reimbursement
Amount remaining after the application described in the preceding sentence shall
be included in the Pool Distribution Amount for the applicable Loan Group.
(b) (i) With respect to the Class A Certificates of Group 1:
On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 1 Senior Certificates
pursuant to Section 5.02(a)(ii) for such Distribution Date, will be distributed
as principal, sequentially, as follows:
first, to the Class 1-A-R Certificate, until its Class Certificate
Balance has been reduced to zero; and
second, to the Class 1-A-1 Certificates, until their Class
Certificate Balance has been reduced to zero.
(ii) With respect to the Class A Certificates of Group 2:
On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 2 Senior Certificates
pursuant to Section 5.02(a)(ii) for such Distribution Date, will be distributed
as principal to the Class 2-A-1 Certificates, until their Class Certificate
Balance has been reduced to zero.
(c) On each Distribution Date, Accrued Certificate Interest for each
Class of Group 1 Senior Certificates, Group 2 Senior Certificates and Class CB
Certificates for such Distribution Date shall be reduced by such Class' pro rata
share, based on such Class' Interest Distribution Amount for such Distribution
Date, without taking into account the allocation made by this Section 5.02(c),
of (A) Non-Supported Interest Shortfalls for the CB Crossed Loan Groups, (B) on
and after the Senior Credit Support Depletion Date, any other Realized Loss on
the Mortgage Loans in the Related Loan Group allocable to interest and (C)
Relief Act Reductions incurred on the Mortgage Loans in the CB Crossed Loan
Groups during the calendar month preceding the month of such Distribution Date.
(d) Notwithstanding the priority and allocation contained in Section
5.02(a)(iii), if with respect to any Class of Class CB Certificates on any
Distribution Date, (i) the sum of the Class Certificate Balances immediately
prior to such Distribution Date of all Classes of Class CB Certificates which
have a higher numerical Class designation than such Class, divided by (ii) the
aggregate Pool Stated Principal Balance for Loan Group 1 and Loan Group 2 (for
each Class, the "Fractional Interest") is less than the Original Fractional
Interest for such Class, no distribution of principal in respect of clause (ii)
of the Subordinate Principal Distribution Amounts will be made to any Classes of
Class CB Certificates junior to such Class (the "Restricted Classes") and the
Class Certificate Balances of the Restricted Classes of Class CB Certificates
will not be used in determining the Pro Rata Share for the Class CB Certificates
that are not Restricted Classes. If the sum of the Class Certificate Balances of
the Class CB Certificates that are not Restricted Classes are reduced to zero,
notwithstanding the previous sentence, any funds remaining will be distributed
sequentially to the Class CB Certificates that are Restricted Classes of such
Related Group in order of their respective numerical Class designations
(beginning with the Class of Class CB Certificates that is a Restricted Class
then outstanding with the lowest numerical Class designation).
Section 5.03 Priorities of Distributions for Group 3.
(a) Interest Distributions with Respect to the Group 3 Certificates:
On each Distribution Date, the Trustee shall withdraw from the
Distribution Account (to the extent funds are available therein) the Group 3
Interest Remittance Amount and apply it in the following order of priority
(based upon the Mortgage Loan information provided to it in the Servicers'
Certificates, upon which the Trustee may conclusively rely):
first, concurrently, as follows:
(i) concurrently, from the Subgroup 3A Interest Remittance
Amount, to Subgroup 3A, pro rata, the applicable Accrued Certificate
Interest and Accrued Component Interest thereon for such
Distribution Date; and
(ii) concurrently, from the Subgroup 3B Interest Remittance
Amount, to Subgroup 3B, pro rata, the applicable Accrued Certificate
Interest and Accrued Component Interest thereon for such
Distribution Date;
second, concurrently, as follows:
(i) concurrently, from the Subgroup 3A Interest Remittance
Amount, to Subgroup 3A, pro rata, the applicable Interest
Carryforward Amount thereon for such Distribution Date; and
(ii) concurrently, from the Subgroup 3B Interest Remittance
Amount, to Subgroup 3B, pro rata, the applicable Interest
Carryforward Amount thereon for such Distribution Date;
third, concurrently, as follows:
(i) concurrently, from the Subgroup 3A Interest Remittance
Amount to Subgroup 3B, pro rata, any unpaid Accrued Certificate
Interest or Accrued Component Interest thereon for such Distribution
Date; and
(ii) concurrently, from the Subgroup 3B Interest Remittance
Amount to Subgroup 3A, pro rata, any unpaid Accrued Certificate
Interest or Accrued Component Interest thereon for such Distribution
Date;
fourth, concurrently, as follows:
(i) concurrently, from the Subgroup 3A Interest Remittance
Amount, to Subgroup 3B, pro rata, any unpaid Interest Carryforward
Amount thereon for such Distribution Date; and
(ii) concurrently, from the Subgroup 3B Interest Remittance
Amount, to Subgroup 3A, pro rata, any unpaid Interest Carryforward
Amount thereon for such Distribution Date;
fifth, to the Class 3-M-1 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date;
sixth, to the Class 3-M-2 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date;
seventh, to the Class 3-B-1 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date;
eighth, to the Class 3-B-2 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date;
ninth, to the Class 3-B-3 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date; and
tenth, the amount, if any, of the Group 3 Interest Remittance Amount
remaining after application with respect to the priorities set forth above
will be applied as described under Section 5.03(c) hereof.
(b) Distributions of Principal with Respect to the Group 3
Certificates:
On each Distribution Date, the Trustee shall withdraw from the
Distribution Account (to the extent funds are available therein) the Group 3
Principal Distribution Amount and shall make the following distributions in the
following order of priority (based upon the Mortgage Loan information provided
to it in the Servicers' Certificates, upon which the Trustee may conclusively
rely):
(i) before the Stepdown Date or with respect to which a Trigger
Event is in effect, as follows:
first, concurrently, as follows:
(1) concurrently, from the Subgroup 3A Principal Percentage of
the Group 3 Senior Principal Distribution Amount, as follows:
(a) concurrently, as follows:
(I) to the Class 3-A-1 Certificates, until the Class
Certificate Balance thereof has been reduced to zero; and
(II) sequentially, to the Class 3-A-1A and Class 3-A-1B
Certificates, in that order, until the Class Certificate
Balances thereof have been reduced to zero; and
(b) to the Class 3-A-3A Component, until the Component Balance
thereof has been reduced to zero; and
(2) concurrently, from the Subgroup 3B Principal Percentage of
the Group 3 Senior Principal Distribution Amount, as follows:
(a) concurrently, as follows:
(I) to the Class 3-A-2 Certificates, until the Class
Certificate Balance thereof has been reduced to zero; and
(II) sequentially, to the Class 3-A-2A and Class 3-A-2B
Certificates, in that order, until the Class Certificate
Balances thereof have been reduced to zero; and
(b) to the Class 3-A-3B Component, until the Component Balance
thereof has been reduced to zero;
second, concurrently, as follows:
(1) concurrently, from the Subgroup 3A Principal Percentage of
the Group 3 Senior Principal Distribution Amount remaining after
priority first above, as follows:
(a) concurrently, as follows:
(I) to the Class 3-A-2 Certificates, until the Class
Certificate Balance thereof has been reduced to zero; and
(II) sequentially, to the Class 3-A-2A and Class 3-A-2B
Certificates, in that order, until the Class Certificate
Balances thereof have been reduced to zero; and
(b) to the Class 3-A-3B Component, until the Component Balance
thereof has been reduced to zero;
(2) concurrently, from the Subgroup 3B Principal Percentage of
the Group 3 Senior Principal Distribution Amount remaining after
priority first above, as follows:
(a) concurrently, as follows:
(I) to the Class 3-A-1 Certificates, until the Class
Certificate Balance thereof has been reduced to zero; and
(II) sequentially, to the Class 3-A-1A and Class 3-A-1B
Certificates, in that order, until the Class Certificate
Balances thereof have been reduced to zero; and
(b) to the Class 3-A-3A Component, until the Component Balance
thereof has been reduced to zero; and
third, to the Class 3-M-1 Certificates, until the Class Certificate
Balance thereof has been reduced to zero;
fourth, to the Class 3-M-2 Certificates, until the Class Certificate
Balance thereof has been reduced to zero;
fifth, to the Class 3-B-1 Certificates, until the Class Certificate
Balance thereof has been reduced to zero;
sixth, to the Class 3-B-2 Certificates, until the Class Certificate
Balance thereof has been reduced to zero;
seventh, to the Class 3-B-3 Certificates, until the Class
Certificate Balance thereof has been reduced to zero; and
eighth, any remaining Group 3 Principal Distribution Amount will be
distributed as part of the Monthly Excess Cashflow Amount as set forth in
Section 5.03(c).
(ii) on or after the Stepdown Date and as long as a Trigger Event is
not in effect, as follows:
first, concurrently, as follows:
(1) concurrently, from the Subgroup 3A Principal Percentage of
the Group 3 Senior Principal Distribution Amount, as follows:
(a) concurrently, as follows:
(I) to the Class 3-A-1 Certificates, until the Class
Certificate Balance thereof has been reduced to zero; and
(II) sequentially, to the Class 3-A-1A and Class 3-A-1B
Certificates, in that order, until the Class Certificate
Balances thereof have been reduced to zero; and
(b) to the Class 3-A-3A Component, until the Component Balance
thereof has been reduced to zero; and
(2) concurrently, from the Subgroup 3B Principal Percentage of
the Group 3 Senior Principal Distribution Amount, as follows:
(a) concurrently, as follows:
(I) to the Class 3-A-2 Certificates, until the Class
Certificate Balance thereof has been reduced to zero; and
(II) sequentially, to the Class 3-A-2A and Class 3-A-2B
Certificates, in that order, until the Class Certificate
Balances thereof have been reduced to zero; and
(b) to the Class 3-A-3B Component, until the Component Balance
thereof has been reduced to zero;
second, concurrently, as follows:
(1) concurrently, from the Subgroup 3A Principal Percentage of
the Group 3 Senior Principal Distribution Amount remaining after
priority first above, as follows:
(a) concurrently, as follows:
(I) to the Class 3-A-2 Certificates, until the Class
Certificate Balance thereof has been reduced to zero; and
(II) sequentially, to the Class 3-A-2A and Class 3-A-2B
Certificates, in that order, until the Class Certificate
Balances thereof have been reduced to zero; and
(b) to the Class 3-A-3B Component, until the Component Balance
thereof has been reduced to zero;
(2) concurrently, from the Subgroup 3B Principal Percentage of
the Group 3 Senior Principal Distribution Amount remaining after
priority first above, as follows:
(a) concurrently, as follows:
(I) to the Class 3-A-1 Certificates, until the Class
Certificate Balance thereof has been reduced to zero; and
(II) sequentially, to the Class 3-A-1A and Class 3-A-1B
Certificates, in that order, until the Class Certificate
Balances thereof have been reduced to zero; and
(b) to the Class 3-A-3A Component, until the Component Balance
thereof has been reduced to zero; and
third, to the Class 3-M-1 Certificates, up to the Class 3-M-1
Principal Distribution Amount, until the Class Certificate Balance thereof
has been reduced to zero;
fourth, to the Class 3-M-2 Certificates, up to the Class 3-M-2
Principal Distribution Amount, until the Class Certificate Balance thereof
has been reduced to zero;
fifth, to the Class 3-B-1 Certificates, up to the Class 3-B-1
Principal Distribution Amount, until the Class Certificate Balance thereof
has been reduced to zero; and
sixth, to the Class 3-B-2 Certificates, up to the Class 3-B-2
Principal Distribution Amount, until the Class Certificate Balance thereof
has been reduced to zero; and
seventh, to the Class 3-B-3 Certificates, up to the Class 3-B-3
Principal Distribution Amount, until the Class Certificate Balance thereof
has been reduced to zero; and
eighth, any remaining Group 3 Principal Distribution Amount will be
distributed as part of the Monthly Excess Cashflow Amount as set forth in
Section 5.03(c).
(c) Distributions of Monthly Excess Cashflow Amounts:
On each Distribution Date, any Monthly Excess Cashflow Amount shall
be distributed, to the extent available, in the following order of priority on
such Distribution Date:
(i) concurrently, to the Group 3 Senior Certificates and
Components, pro rata, any remaining Accrued Certificate Interest or
Accrued Component Interest for such Class or Component for such
Distribution Date;
(ii) concurrently, to the Group 3 Senior Certificates and
Components, pro rata, any Interest Carry Forward Amount for such
Class or Component for such Distribution Date;
(iii) concurrently, to the Components, pro rata in accordance
with their Unpaid Realized Loss Amounts, any Class 3-A-3 Realized
Loss Amortization Amount;
(iv) to pay any remaining unpaid Accrued Certificate Interest
for such Distribution Date for the Class 3-M-1 Certificates;
(v) to pay the remaining Interest Carry Forward Amount, if
any, for the Class 3-M-1 Certificates;
(vi) to pay any Class 3-M-1 Realized Loss Amortization Amount
for such Distribution Date;
(vii) to pay any remaining unpaid Accrued Certificate Interest
for such Distribution Date for the Class 3-M-2 Certificates;
(viii) to pay the remaining Interest Carry Forward Amount, if
any, for the Class 3-M-2 Certificates;
(ix) to pay any Class 3-M-2 Realized Loss Amortization Amount
for such Distribution Date;
(x) to pay any remaining unpaid Accrued Certificate Interest
for such Distribution Date for the Class 3-B-1 Certificates;
(xi) to pay the remaining Interest Carry Forward Amount, if
any, for the Class 3-B-1 Certificates;
(xii) to pay any Class 3-B-1 Realized Loss Amortization Amount
for such Distribution Date;
(xiii) to pay any remaining unpaid Accrued Certificate
Interest for such Distribution Date for the Class 3-B-2
Certificates;
(xiv) to pay the remaining Interest Carry Forward Amount, if
any, for the Class 3-B-2 Certificates;
(xv) to pay any Class 3-B-2 Realized Loss Amortization Amount
for such Distribution Date;
(xvi) to pay any remaining unpaid Accrued Certificate Interest
for such Distribution Date for the Class 3-B-3 Certificates;
(xvii) to pay the remaining Interest Carry Forward Amount, if
any, for the Class 3-B-3 Certificates;
(xviii) to pay any Class 3-B-3 Realized Loss Amortization
Amount for such Distribution Date;
(xix) first, concurrently, to the Group 3 Senior Certificates
(other than the Class 3-A-3 Certificates), pro rata, and then
sequentially, to the Components and the Class 3-M-1, Class 3-M-2,
Class 3-B-1, Class 3-B-2 and Class 3-B-3 Certificates, in that
order, any Cap Carryover Amount for each such class or Component;
and
(xx) to pay to the Class 3-CE Certificates, up to the Class
3-CE Distributable Amount for such Distribution Date.
On each Distribution Date, there shall be distributed to the Holder
of the Class 1-A-R Certificate, any remaining amount in the Distribution Account
in respect of Loan Group 3 on such date after the application pursuant to
Sections 5.03(a), 5.03(b) and 5.03(c)(i)-(xx).
(d) Any amounts distributed to the Offered Group 3 Certificates in
respect of interest pursuant to Section 5.03(c)(xix) which constitute Cap
Carryover Amounts shall first be deemed distributed by as a distribution to the
Class 3-CE Certificates, and then distributed to the Group 3 Certificates from
the Grantor Trust as payments on notional principal contracts in the nature of
cap contracts. Any remaining amount with respect to the Class 3-CE Certificates
or any remaining Yield Maintenance Agreement Payment shall be treated as having
been distributed to the Holders of the Class 3-CE Certificates from the Grantor
Trust.
(e) On each Distribution Date, Unpaid Realized Loss Amounts on the
Offered Group 3 Certificates will be reduced by the amount of any Recoveries
relating to the Group 3 Mortgage Loans received during the prior calendar month
in the same order as Realized Loss Amortization Amounts are paid to the Offered
Group 3 Certificates pursuant to Section 5.03(c) above.
(f) Notwithstanding any other provision of this Section 5.03, no
Class Certificate Balance of a Class of Group 3 Certificates will be increased
on any Distribution Date such that the Class Certificate Balance of such Class
exceeds its Initial Class Certificate Balance less all distributions of
principal previously distributed in respect of such Class on prior Distribution
Dates.
(g) On each Distribution Date, the Trustee shall withdraw any
amounts then on deposit in the Distribution Account that represent Prepayment
Premiums and shall distribute such amounts to the Holders of the Class 3-P
Certificates. Such amounts shall be treated as having been distributed to the
Holders of the Class 3-P Certificates from the Grantor Trust.
Section 5.04 Allocation of Losses for the Shifting Interest
Certificates.
(a) On or prior to each Determination Date, each Servicer shall
inform the Trustee in writing with respect to each Mortgage Loan serviced by
such Servicer: (1) whether any Realized Loss is a Deficient Valuation or a Debt
Service Reduction, (2) of the amount of such loss or Deficient Valuation, or of
the terms of such Debt Service Reduction and (3) of the total amount of Realized
Losses on the Mortgage Loans serviced by such Servicer in each Loan Group. Based
on such information, the Trustee shall determine the total amount of Realized
Losses on the Mortgage Loans in each Loan Group with respect to the related
Distribution Date. Realized Losses shall be allocated to the Certificates by a
reduction in the Class Certificate Balances of the designated Classes pursuant
to Section 5.04(b) below.
The Class Certificate Balance of the Class CB Certificates then
outstanding with the highest numerical Class designation shall be reduced or
increased on each Distribution Date by the amount, if any, necessary such that
the aggregate of the Class Certificate Balances of all outstanding Classes of
Group 1 Senior Certificates, Group 2 Senior Certificates and Class CB
Certificates (after giving effect to the amount to be distributed as a
distribution of principal on such Distribution Date) equals the sum of the
Adjusted Pool Amounts for Loan Group 1 and Loan Group 2 for such Distribution
Date.
After the Senior Credit Support Depletion Date, the Class
Certificate Balances of the Senior Certificates of each Shifting Interest Group
in the aggregate shall be reduced or increased on each Distribution Date by the
amount, if any, necessary such that the aggregate of the Class Certificate
Balances of all outstanding Classes of Senior Certificates of such Shifting
Interest Group (after giving effect to the amount to be distributed as a
distribution of principal on such Distribution Date) equals the Adjusted Pool
Amount for the Related Loan Group for such Distribution Date.
Any such reduction or increase shall be allocated among the Senior
Certificates of such Shifting Interest Group, based on the Class Certificate
Balances immediately prior to such Distribution Date until the Class Certificate
Balances thereof have been reduced to zero.
(b) Any reduction or increase in the Class Certificate Balance of a
Class of Certificates pursuant to Section 5.04(a) above shall be allocated among
the Certificates of such Class in proportion to their respective Percentage
Interests.
(c) The calculation of the amount to be distributed as principal to
any Class of Class CB Certificates with respect to a Distribution Date (the
"Calculated Principal Distribution") shall be made prior to the allocation of
any Realized Losses on the Shifting Interest Certificates for such Distribution
Date; provided, however, the actual payment of principal to the Classes of Class
CB Certificates shall be made subsequent to the allocation of Realized Losses
for such Distribution Date. In the event that after the allocation of Realized
Losses for a Distribution Date, the Calculated Principal Distribution for a
Class of Class CB Certificates is greater than the Class Certificate Balance of
such Class, the excess shall be distributed first, sequentially, to the Classes
of Class CB Certificates then outstanding (beginning with the Class of Class CB
Certificates then outstanding with the lowest numerical designation) until the
respective Class Certificate Balance of each such Class is reduced to zero and
then to the Group 1 Senior Certificates and Group 2 Senior Certificates, pro
rata, in accordance with the priorities set forth in Section 5.02.
(d) With respect to any Distribution Date, Realized Losses allocated
pursuant to this Section 5.04 will be allocated to each Uncertificated
Lower-Tier Interest as described in Section 5.11(a).
(e) Notwithstanding any other provision of this Section 5.04, no
Class Certificate Balance of a Shifting Interest Class will be increased on any
Distribution Date such that the Class Certificate Balance of such Class exceeds
its Initial Class Certificate Balance less all distributions of principal
previously distributed in respect of such Class on prior Distribution Dates.
Section 5.05 Allocation of Losses for the Group 3 Certificates.
Any Applied Realized Loss Amount for a Distribution Date will be
allocated in reduction of the Class Certificate Balances of the Class 3-B-3,
Class 3-B-2, Class 3-B-1, Class 3-M-2 and Class 3-M-1 Certificates, in that
order and until the respective Class Certificate Balances thereof are reduced to
zero.
On the Distribution Date on which the application of the Applied
Realized Loss Amount would reduce the Class Certificate Balance of the Class
3-M-1 Certificates to zero, (i) the portion of the Applied Realized Loss Amount
related to the Subgroup 3A Mortgage Loans shall be applied in reduction of the
aggregate Class Certificate Balance of the Subordinate Certificates in the order
set forth in the paragraph above in an amount up to the product of (a) the
fraction, the numerator of which is the portion of the Applied Realized Loss
Amount related to the Subgroup 3A Mortgage Loans and the denominator of which is
the Applied Realized Loss Amount and (b) the aggregate Class Certificate Balance
of the Subordinate Certificates and (ii) the portion of the Applied Realized
Loss Amount related to the Subgroup 3B Mortgage Loans shall be applied in
reduction of the aggregate Class Certificate Balance of the Subordinate
Certificates in the order set forth in the paragraph above in an amount up to
the product of (a) the fraction, the numerator of which is the portion of the
Applied Realized Loss Amount related to the Subgroup 3B Mortgage Loans and the
denominator of which is the Applied Realized Loss Amount and (b) the aggregate
Class Certificate Balance of the Subordinate Certificates.
On and after the Distribution Date on which the Class Certificate
Balance of the Class 3-M-1 Certificate has been reduced to zero, the Class
3-A-3A Applied Realized Loss Amount for such Distribution Date will be allocated
in reduction of the Component Balance of the Class 3-A-3A Component and the
Class 3-A-3B Applied Realized Loss Amount for such Distribution Date will be
allocated in reduction of the Component Balance of the Class 3-A-3B Component,
until the Component Balance of each such Component has been reduced to zero.
On and after the Distribution Date on which the Component Balance of
a Component has been reduced to zero due to the application of a Class 3-A-3A
Applied Realized Loss Amount or Class 3-A-3B Applied Realized Loss Amount, as
applicable, any remaining Class 3-A-3A Applied Realized Loss Amount or Class
3-A-3B Applied Realized Loss Amount, as applicable, will be allocated in
reduction of the Component Balance of the remaining Component and on all
subsequent Distribution Dates, any Applied Realized Loss Amount will be
allocated in reduction of the Component Balance of the remaining Component until
reduced to zero.
Section 5.06 Statements to Certificateholders.
(a) Prior to the Distribution Date in each month, based upon the
information provided to the Trustee on the Servicers' Certificates delivered to
the Trustee pursuant to Section 4.01, the Trustee shall determine the following
information with respect to such Distribution Date:
(i) for each Group, the amount allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments and
Liquidation Proceeds included therein;
(ii) for each Loan Group, the amount allocable to interest, the
Class 3-CE Distributable Amount, any Class Unpaid Interest Shortfall
included in such distribution and any remaining Class Unpaid Interest
Shortfall after giving effect to such distribution;
(iii) with respect to the Shifting Interest Certificates, if the
distribution to the Holders of such Class of Certificates is less than the
full amount that would be distributable to such Holders if there were
sufficient funds available therefor, the amount of the shortfall and the
allocation thereof as between principal and interest;
(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on such Distribution
Date;
(v) for Loan Group 3, the Overcollateralization Amount, the
Overcollateralization Release Amount, the Overcollateralization Deficiency
and the Targeted Overcollateralization Amount as of such Distribution Date
and the Monthly Excess Interest Amount and Monthly Excess Cashflow Amount
for such Distribution Date;
(vi) for each Shifting Interest Loan Group, the Pool Stated
Principal Balance for the following Distribution Date and for Loan Group
3, Loan Subgroup 3A and Loan Subgroup 3B, the aggregate Stated Principal
Balance of the Group 3 Mortgage Loans, the Subgroup 3A Mortgage Loans and
Subgroup 3B Mortgage Loans, as applicable, as of the Due Date in the month
of such Distribution Date;
(vii) with respect to each Shifting Interest Loan Group, the Senior
Percentage for each Loan Group, and the Subordinate Percentage for the
following Distribution Date, the CB Crossed Loan Group Senior Percentage
and the CB Crossed Loan Group Subordinate Percentage for the following
Distribution Date;
(viii) the amount of the Servicing Fee paid to or retained by each
Servicer with respect to each Loan Group and such Distribution Date;
(ix) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(x) for each Loan Group, the amount of Periodic Advances included in
the distribution on such Distribution Date and the aggregate amount of
Periodic Advances outstanding as of the close of business on such
Distribution Date;
(xi) for each Loan Group, the number and aggregate principal amounts
of Mortgage Loans (A) delinquent (exclusive of Mortgage Loans in
foreclosure or in bankruptcy) (1) 1 to 30 days (2) 31 to 60 days (3) 61 to
90 days and (4) 91 or more days, (B) in foreclosure, as of the close of
business on the last day of the calendar month preceding such Distribution
Date and (C) in bankruptcy, as of the close of business on the last day of
the calendar month preceding such Distribution Date;
(xii) for each Loan Group, with respect to any Mortgage Loan that
became an REO Property during the preceding calendar month, the loan
number and Stated Principal Balance of such Mortgage Loan as of the close
of business on the Determination Date preceding such Distribution Date and
the date of acquisition thereof;
(xiii) for each Loan Group, the total number and principal balance
of any REO Properties (and market value, if available) as of the close of
business on the Determination Date preceding such Distribution Date;
(xiv) for each Shifting Interest Loan Group, the Senior Prepayment
Percentage and the Subordinate Prepayment Percentage for the following
Distribution Date;
(xv) the Accrued Certificate Interest in respect of each Class of
Group 3 Certificates for such Distribution Date and any related Cap
Carryover Amounts, and the respective portions thereof, if any, remaining
unpaid following the distributions made in respect of such Certificates on
such Distribution Date;
(xvi) with respect to Loan Group 3, the Cap Carryover Amounts
distributed on such Distribution Date, the amounts remaining after giving
effect to distributions thereof on such Distribution Date, the amount of
all Cap Carryover Amounts covered by withdrawals from the Reserve Account
on such Distribution Date;
(xvii) whether a Trigger Event has occurred and is continuing, and
the cumulative Realized Losses, as a percentage of the original aggregate
Stated Principal Balance of Loan Group 3;
(xviii) the Available Funds;
(xix) for each Loan Group, the aggregate amount of Realized Losses
or Applied Realized Loss Amounts, as applicable, incurred during the
preceding calendar month and for each Group for such Distribution Date
separately identifying any reduction thereof due to the allocations of
Realized Losses or Applied Realized Loss Amounts;
(xx) for each Loan Group, the amount of Recoveries and Reimbursement
Amounts; and
(xxi) the amount of the distribution made on such Distribution Date
to the Holders of the Class 3-P Certificates.
(b) No later than each Distribution Date, the Trustee, based upon
information supplied to it on the Servicers' Certificates, shall make available
to each Holder of a Certificate, each Rating Agency and each Servicer a
statement setting forth the information set forth in Section 5.06(a).
In the case of information furnished pursuant to clauses (i) and
(ii) of Section 5.06(a), the amounts shall be expressed as a dollar amount per
Certificate with a $1,000 denomination.
On each Distribution Date, the Trustee shall prepare and make
available to each Financial Market Service, in electronic or such other format
and media mutually agreed upon by the Trustee, the Financial Market Service and
the Depositor, the information contained in the statement described in Section
5.06(a) for such Distribution Date.
The Trustee will make the monthly statement to Certificateholders
(and, at its option, any additional files containing the same information in an
alternative format) available each month to Certificateholders, the NIMS Insurer
and other parties to this Agreement via the Trustee's Internet website. The
Trustee's Internet website shall initially be located at "xxx.xxxxxxx.xxx."
Assistance in using the website can be obtained by calling the Trustee's
customer service desk at (000) 000-0000. Parties that are unable to use the
website are entitled to have a paper copy mailed to them via first class mail by
calling the customer service desk and indicating such. The Trustee shall have
the right to change the way the monthly statements to Certificateholders are
distributed in order to make such distribution more convenient and/or more
accessible to the above parties and the Trustee shall provide timely and
adequate notification to all above parties regarding any such changes.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to the NIMS Insurer and each Person who at any
time during the calendar year was the Holder of a Certificate, if requested in
writing by such Person, a statement containing the information set forth in
clauses (i) and (ii) of Section 5.06(a), in each case aggregated for such
calendar year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Trustee shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trustee pursuant to any requirements of the Code as from time to
time in force.
The Trustee shall deliver to the Holders of Certificates any reports
or information the Trustee is required by this Agreement or the Code, Treasury
Regulations or REMIC Provisions to deliver to the Holders of Certificates, and
the Trustee shall prepare and provide to the Certificateholders (by mail,
telephone, or publication as may be permitted by applicable Treasury
Regulations) such other reasonable information as the Trustee deems necessary or
appropriate or is required by the Code, Treasury Regulations, and the REMIC
Provisions including, but not limited to, (i) information to be reported to the
Holder of the Residual Certificate for quarterly notices on Schedule Q (Form
1066) (which information shall be forwarded to the Holder of the Residual
Certificate by the Trustee), (ii) information to be provided to the Holder of
Certificates with respect to amounts which should be included as interest and
original issue discount in such Holders' gross income and (iii) information to
be provided to all Holders of Certificates setting forth the percentage of each
REMIC's assets, determined in accordance with Treasury Regulations using a
convention, not inconsistent with Treasury Regulations, selected by the Trustee
in its absolute discretion, that constitute real estate assets under Section 856
of the Code, and assets described in Section 7701(a)(19)(C) of the Code;
provided, however, that in setting forth the percentage of such assets of each
REMIC, nothing contained in this Agreement, including without limitation Section
7.03 hereof, shall be interpreted to require the Trustee periodically to
appraise the fair market values of the assets of the Trust Estate or to
indemnify the Trust Estate or any Certificateholders from any adverse federal,
state or local tax consequences associated with a change subsequently required
to be made in the Depositor's initial good faith determinations of such fair
market values (if subsequent determinations are required pursuant to the REMIC
Provisions) made from time to time.
Section 5.07 Tax Returns and Reports to Certificateholders.
(a) For federal income tax purposes, each REMIC shall have a
calendar year taxable year and shall maintain its books on the accrual method of
accounting.
(b) The Trustee shall prepare or cause to be prepared, shall execute
and shall file or cause to be filed with the Internal Revenue Service and
applicable state or local tax authorities income tax information returns for
each taxable year with respect to each REMIC containing such information at the
times and in the manner as may be required by the Code, the Treasury Regulations
or state or local tax laws, regulations, or rules, and shall furnish or cause to
be furnished to each REMIC and the Certificateholders the schedules, statements
or information at such times and in such manner as may be required thereby.
Within 30 days of the Closing Date, the Trustee shall obtain for each REMIC a
taxpayer identification number on Form SS-4 or as otherwise permitted by the
Internal Revenue Service, and shall furnish or cause to be furnished to the
Internal Revenue Service, on Form 8811 or as otherwise required by the Code or
the Treasury Regulations, the name, title, address and telephone number of the
person that Holders of the Certificates may contact for tax information relating
thereto, together with such additional information at the time or times and in
the manner required by the Code or the Treasury Regulations. Such federal,
state, or local income tax or information returns shall be signed by the
Trustee, or such other Person as may be required to sign such returns by the
Code, the Treasury Regulations or state or local tax laws, regulations, or
rules.
(c) In the first federal income tax return of each REMIC for its
short taxable year ending December 31, 2005, REMIC status shall be elected for
each REMIC for such taxable year and all succeeding taxable years.
(d) The Trustee will maintain or cause to be maintained such records
relating to each REMIC, including but not limited to records relating to the
income, expenses, assets and liabilities of the Trust Estate, and the initial
fair market value and adjusted basis of the Trust Estate property and assets
determined at such intervals as may be required by the Code or the Treasury
Regulations, as may be necessary to prepare the foregoing returns, schedules,
statements or information.
Section 5.08 Tax Matters Person. The Tax Matters Person shall have
the same duties with respect to each REMIC as those of a "tax matters partner"
under Subchapter C of Chapter 63 of Subtitle F of the Code. The Holder of the
Class 1-A-R Certificate is hereby designated as the Tax Matters Person for each
REMIC. By its acceptance of the Residual Certificate, such Holder irrevocably
appoints the Trustee as its agent to perform all of the duties of the Tax
Matters Person for each REMIC.
Section 5.09 Rights of the Tax Matters Person in Respect of the
Trustee. The Trustee shall afford the Tax Matters Person, upon reasonable notice
during normal business hours, access to all records maintained by the Trustee in
respect of its duties hereunder and access to officers of the Trustee
responsible for performing such duties. Upon request, the Trustee shall furnish
the Tax Matters Person with its most recent report of condition published
pursuant to law or to the requirements of its supervisory or examining authority
publicly available. The Trustee shall make available to the Tax Matters Person
such books, documents or records relating to the Trustee's services hereunder as
the Tax Matters Person shall reasonably request. The Tax Matters Person shall
not have any responsibility or liability for any action or failure to act by the
Trustee and is not obligated to supervise the performance of the Trustee under
this Agreement or otherwise.
Section 5.10 REMIC Related Covenants. For as long as the Trust shall
exist, the Trustee, the Depositor and each Servicer shall act in accordance
herewith to assure continuing treatment of the each REMIC as a REMIC and avoid
the imposition of tax on any REMIC created hereunder. In particular:
(a) The Trustee shall not create, or permit the creation of, any
"interests" in any REMIC within the meaning of Code Section 860D(a)(2) other
than the interests represented by the Regular Certificates, the Residual
Certificate and the Uncertificated Lower-Tier Interests and the Uncertificated
Group 3 Lower-Tier Interests.
(b) Except as otherwise provided in the Code, (i) the Depositor and
the Servicers shall not contribute to the Trust Estate and the Trustee shall not
accept property unless substantially all of the property held in each REMIC
constitutes either "qualified mortgages" or "permitted investments" as defined
in Code Sections 860G(a)(3) and (5), respectively, and (ii) no property shall be
contributed to any REMIC after the start-up day unless such contribution would
not subject the Trust Estate to the 100% tax on contributions to a REMIC after
the start-up day of the REMIC imposed by Code Section 860G(d).
(c) The Trustee shall not accept on behalf of any REMIC any fee or
other compensation for services and none of the Trustee or the Servicers shall
knowingly accept, on behalf of the Trust Estate any income from assets other
than those permitted to be held by a REMIC.
(d) The Trustee shall not sell or permit the sale of all or any
portion of the Mortgage Loans (other than in accordance with Sections 2.02 or
3.16(f)), unless such sale is pursuant to a "qualified liquidation" of the
applicable REMIC as defined in Code Section 860F(a)(4)(A) and in accordance with
Article X.
(e) The Trustee shall maintain books with respect to the Trust and
each REMIC on a calendar year taxable year and on an accrual basis.
(f) None of the Servicers or the Trustee shall engage in a
"prohibited transaction" (as defined in Code Section 860F(a)(2)), except that,
with the prior written consent of each Servicer and the Depositor, the Trustee
may engage in the activities otherwise prohibited by the foregoing paragraphs
(b), (c) and (d); provided that the requesting Servicer shall have delivered to
the Trustee an Opinion of Counsel to the effect that such transaction will not
result in the imposition of a tax on any REMIC created hereunder and will not
disqualify the Trust Estate from treatment as four REMICs; and, provided
further, that such Servicer shall have demonstrated to the satisfaction of the
Trustee that such action will not adversely affect the rights of the Holders of
the Certificates and the Trustee and that such action will not adversely impact
the rating of the Certificates.
Section 5.11 REMIC Distributions.
(a) On each Distribution Date, interest shall be distributed in
respect of each Uncertificated Lower-Tier Interest at the pass-through rate
thereon, as described below. On each Distribution Date, all distributions of
principal shall be made first, to the Class 1-LS Interest and Class 2-LS
Interest, so as to keep the principal balances thereof (computed to eight
decimal places) equal to 0.1% of the Group Subordinate Amount for Loan Group 1
and Loan Group 2, respectively (except that if any such amount is greater than
on the preceding Distribution Date, the least amount of principal shall be
distributed to the Class 1-LS Interest and Class 2-LS Interest, such that the
Class CB Subordinate Balance Ratio is maintained); and second, any remaining
principal to the Class 1-L Interest and Class 2-L Interest. Any distributions of
principal made to the Uncertificated Lower-Tier Interests pursuant to this
paragraph shall be made (a) from the Group 1 Mortgage Loans to the
Uncertificated Lower-Tier Interests beginning with the numeral "1" and (b) from
the Group 2 Mortgage Loans to the Uncertificated Lower-Tier Interests beginning
with the numeral "2."
Realized Losses shall be applied after all distributions have been
made on each Distribution Date first, to the Class 1-LS Interest and the Class
2-LS Interest, so as to keep their principal balances (computed to eight decimal
places) equal to 0.1% of the Group Subordinate Amount for Loan Group 1 and Loan
Group 2, respectively (except that if any such amount is greater than on the
preceding Distribution Date, the least amount of Realized Losses shall be
allocated to the Class 1-LS Interest and Class 2-LS Interest, such that the
Class CB Subordinate Balance Ratio is maintained); and second, the remaining
Realized Losses shall be allocated to the Class 1-L Interest and Class 2-L
Interest. Any Realized Losses allocated to the Uncertificated Lower-Tier
Interests pursuant to this paragraph shall be (a) from Realized Losses allocated
to Loan Group 1 in the case of Uncertificated Lower-Tier Interests beginning
with the numeral "1" and (b) from Realized Losses allocated to Loan Group 2 in
the case of Uncertificated Lower-Tier Interests beginning with the numeral "2."
Recoveries and Reimbursement Amounts shall be applied to the
Uncertificated Lower-Tier Interests in a manner analogous to the application of
Realized Losses to the Uncertificated Lower-Tier Interests.
As of any date, the aggregate principal balance of the Class 1-L
Interest and the Class 1-LS Interest shall equal the aggregate Stated Principal
Balance of the Group 1 Mortgage Loans. As of any date, the aggregate principal
balance of the Class 2-L Interest and the Class 2-LS Interest shall equal the
aggregate Stated Principal Balance of the Group 2 Mortgage Loans.
The pass-through rate with respect to the Class 1-L Interest and the
Class 1-LS Interest shall be the Group 1 Lower-Tier Rate. The pass-through rate
with respect to the Class 2-L Interest and Class 2-LS Interest shall be the
Group 2 Lower-Tier Rate. Any Non-Supported Interest Shortfalls and Relief Act
Reductions will be allocated to each Uncertificated Lower-Tier Interest in the
same relative proportions as interest is allocated to such Uncertificated
Lower-Tier Interest. Amounts distributed to the Uncertificated Lower-Tier
Interests in respect of principal and interest with respect to any Distribution
Date are referred to herein collectively as the "Lower-Tier Distribution
Amount."
(b) On each Distribution Date, the Trustee shall cause in the
following order of priority, the following amounts to be distributed by the
Group 3 Lower-Tier REMIC to the Group 3 Upper-Tier REMIC on account of the
Uncertificated Group 3 Regular Interests (such amount, the "Group 3 Lower-Tier
Distribution Amount"):
(i) to Holders of Regular Interest LT1AA, Regular Interest LT1A1,
Regular Xxxxxxxx XX0X0X, Regular Interest LT1A1B, Regular Interest LT1A2,
Regular Xxxxxxxx XX0X0X, Regular Interest LT1A2B, Regular Xxxxxxxx XX0X0X,
Regular Interest LT1A3B, Regular Interest LT1M1, Regular Interest LT1M2,
Regular Interest LT1B1, Regular Interest LT1B2, Regular Interest LT1B3 and
Regular Interest LT1ZZ, pro rata, in an amount equal to (A) the
Uncertificated Accrued Interest for such Distribution Date, plus (B) any
amounts in respect thereof remaining unpaid from previous Distribution
Dates. Amounts payable as Uncertificated Accrued Interest in respect of
Regular Interest LT1ZZ shall be reduced and deferred when the 3LT
Overcollateralized Amount is less than the 3LT Overcollateralization
Target Amount, by the lesser of (x) the amount of such difference and (y)
the Maximum LT1ZZ Uncertificated Accrued Interest Deferral Amount and such
amount will be payable to the Holders of Regular Interest LT1A1, Regular
Xxxxxxxx XX0X0X, Regular Interest LT1A1B, Regular Interest LT1A2, Regular
Xxxxxxxx XX0X0X, Regular Interest LT1A2B, Regular Xxxxxxxx XX0X0X, Regular
Interest LT1A3B, Regular Interest LT1M1, Regular Interest LT1M2, Regular
Interest LT1B1, Regular Interest LT1B2 and Regular Interest LT1B3 in the
same proportion as the Overcollateralization Deficiency is allocated to
the Corresponding Certificates;
(ii) to Holder of Regular Interest LT1XX, in an amount equal to (A)
the Uncertificated Accrued Interest for such Distribution Date, plus (B)
any amounts in respect thereof remaining unpaid from previous Distribution
Dates;
(iii) to the Holders of Interests, in an amount equal to the
remainder of the 3LT Marker Allocation Percentage of Available Funds for
such Distribution Date after the distributions made pursuant to clause (i)
above, allocated as follows:
(A) to Regular Interest LT1AA, 98.00% of such remainder, until
the Uncertificated Principal Balance of such Uncertificated Group 3
Lower-Tier Interest is reduced to zero;
(B) to Regular Interest LT1A1, Regular Xxxxxxxx XX0X0X,
Regular Interest LT1A1B, Regular Interest LT1A2, Regular Xxxxxxxx
XX0X0X, Regular Interest LT1A2B, Regular Xxxxxxxx XX0X0X, Regular
Interest LT1A3B, Regular Interest LT1M1, Regular Interest LT1M2,
Regular Interest LT1B1, Regular Interest LT1B2 and Regular Interest
LT1B3, 1.00% of such remainder, in the same proportion as principal
payments are allocated to the Corresponding Classes or Components,
until the Uncertificated Principal Balances of such Uncertificated
Group 3 Lower-Tier Interests are reduced to zero; then
(C) to Regular Interest LT1ZZ, 1.00% of such remainder, until
the Uncertificated Principal Balance of such Uncertificated Group 3
Lower-Tier Interest is reduced to zero;
provided, however, that (i) 98.00% and (ii) 2.00% of any principal
payments that are attributable to an Overcollateralization Release
Amount shall be allocated to (i) Regular Interest LT1AA and (ii)
Regular Interest LT1ZZ, respectively; and
(iv) to the Holders of Uncertificated Group 3 Lower-Tier Interests,
in an amount equal to the 3LT Sub WAC Allocation Percentage of Available
Funds for such Distribution Date after the distributions made pursuant to
clause (i) above, such that distributions of principal shall be deemed to
be made to the Group 3 Lower-Tier Regular Interests first, so as to keep
the Uncertificated Principal Balance of each Group 3 Lower-Tier Regular
Interest ending with the designation "GRP" equal to 0.01% of the Pool
Principal Balance of the Related Loan Subgroup; second, to each Group 3
Lower-Tier Regular Interest ending with the designation "SUB," so that the
Uncertificated Principal Balance of each such Group 3 Lower-Tier Regular
Interest is equal to 0.01% of the related Subgroup Subordinate Amount
(except that if any such excess is a larger number than on the preceding
Distribution Date, the least amount of principal shall be distributed to
such Group 3 Lower-Tier Regular Interests such that the Group 3
Subordinate Balance Ratio is maintained); and third, any remaining
principal to Regular Interest LT1XX.
(c) The Trustee shall cause the following allocation of losses:
(i) The 3LT Marker Allocation Percentage of the aggregate amount of
any Prepayment Interest Shortfalls and the 3LT Marker Allocation
Percentage of the aggregate amount of any Relief Act Interest Shortfalls
incurred in respect of the Group 3 Mortgage Loans for any Distribution
Date shall be allocated first, to Uncertificated Accrued Interest payable
to Regular Interest LT1AA and Regular Interest LT1ZZ up to an aggregate
amount equal to the 3LT Interest Loss Allocation Amount, 98% and 2%,
respectively, and thereafter among Regular Interest LT1AA, Regular
Interest LT1A1, Regular Xxxxxxxx XX0X0X, Regular Interest LT1A1B, Regular
Interest LT1A2, Regular Xxxxxxxx XX0X0X, Regular Interest LT1A2B, Regular
Xxxxxxxx XX0X0X, Regular Interest LT1A3B, Regular Interest LT1M1, Regular
Interest LT1M2, Regular Interest LT1B1, Regular Interest LT1B2, Regular
Interest LT1B3 and Regular Interest LT1ZZ, pro rata, based on, and to the
extent of, one month's interest at the then applicable Group 3 Lower-Tier
Rate on the respective Uncertificated Principal Balance of each such
Uncertificated Group 3 Lower-Tier Interest;
(ii) The 3LT Sub WAC Allocation Percentage of the aggregate amount
of any Prepayment Interest Shortfalls and the 3LT Sub WAC Allocation
Percentage of the aggregate amount of any Relief Act Interest Shortfalls
incurred in respect of the Group 3 Mortgage Loans for any Distribution
Date shall be allocated first, to the Uncertificated Accrued Interest
payable to Regular Interest LT1SUB, Regular Interest LT1GRP, Regular
Interest LT2SUB, Regular Interest LT2GRP and Regular Interest LT1XX, pro
rata, based on, and to the extent of, one month's interest at the then
applicable Group 3 Lower-Tier Rate on the related Uncertificated Principal
Balance of each such Uncertificated Group 3 Lower-Tier Interest;
(iii) The 3LT Marker Allocation Percentage of all Realized Losses on
the Group 3 Mortgage Loans shall be allocated by the Trustee on each
Distribution Date to the following Uncertificated Group 3 Lower-Tier
Interests in the specified percentages, as follows: first, to
Uncertificated Accrued Interest payable to Regular Interest LT1AA and
Regular Interest LT1ZZ up to an aggregate amount equal to the 3LT Interest
Loss Allocation Amount, 98% and 2%, respectively; second, to the
Uncertificated Principal Balances of Regular Interest LT1AA and Regular
Interest LT1ZZ up to an aggregate amount equal to the 3LT Principal Loss
Allocation Amount, 98% and 2%, respectively; third, to the Uncertificated
Principal Balances of Regular Interest LT1AA, Regular Interest LT1B3 and
Regular Interest LT1ZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of Regular Interest LT1B3 has been
reduced to zero; fourth, to the Uncertificated Principal Balances of
Regular Interest LT1AA, Regular Interest LT1B2 and Regular Interest LT1ZZ,
98%, 1% and 1%, respectively, until the Uncertificated Principal Balance
of Regular Interest LT1B2 has been reduced to zero; fifth, to the
Uncertificated Principal Balances of Regular Interest LT1AA, Regular
Interest LT1B1 and Regular Interest LT1ZZ, 98%, 1% and 1%, respectively,
until the Uncertificated Principal Balance of Regular Interest LT1B1 has
been reduced to zero; sixth, to the Uncertificated Principal Balances of
Regular Interest LT1AA, Regular Interest LT1M2 and Regular Interest LT1ZZ,
98%, 1% and 1%, respectively, until the Uncertificated Principal Balance
of Regular Interest LT1M2 has been reduced to zero; and seventh, to the
Uncertificated Principal Balances of Regular Interest LT1AA, Regular
Interest LT1M1 and Regular Interest LT1ZZ, 98%, 1% and 1%, respectively,
until the Uncertificated Principal Balance of Regular Interest LT1M1 has
been reduced to zero; and
(iv) The 3LT Sub WAC Allocation Percentage of all Realized Losses
shall be applied after all distributions have been made on each
Distribution Date first, so as to keep the Uncertificated Principal
Balance of each Regular Interest ending with the designation "GRP" equal
to 0.01% of the Pool Principal Balance of the related Loan Subgroup;
second, to each Regular Interest ending with the designation "SUB," so
that the Uncertificated Principal Balance of each such Regular Interest is
equal to 0.01% of the related Subgroup Subordinate Amount (except that if
any such excess is a larger number than on the preceding Distribution
Date, the least amount of Realized Losses shall be applied to such Group 3
Lower-Tier Regular Interests such that the Group 3 Subordinate Balance
Ratio is maintained); and third, any remaining Realized Losses shall be
allocated to Regular Interest LT1XX.
(d) With respect to the Group 3 Lower-Tier REMIC, any increase in
principal balance due to a Recovery shall be allocated as follows:
(i) The 3LT Sub WAC Allocation Percentage of Recoveries shall be
applied first, so as to keep the Uncertificated Principal Balance of each
Group 3 Lower-Tier Regular Interest ending with the designation "GRP"
equal to 0.01% of the aggregate Stated Principal Balance of the Mortgage
Loans in the related Subgroup; second, to each Group 3 Lower-Tier Regular
Interest ending with the designation "SUB," so that the Uncertificated
Principal Balance of each such Group 3 Lower-Tier Regular Interest is
equal to 0.01% of the excess of (x) the aggregate Stated Principal Balance
of the Mortgage Loans in the related Loan Subgroup over (y) the current
Class Certificate Balance or Component Balance of the Group 3 Senior
Certificates or Components in the related Loan Subgroup (except that if
any such excess is a larger number than in the preceding distribution
period, the least amount of Recoveries shall be applied to such Group 3
Lower-Tier Regular Interests such that the Group 3 Subordinate Balance
Ratio is maintained); and third, any remaining Recoveries shall be
allocated to Regular Interest LT1XX.
(ii) The 3LT Marker Percentage of Recoveries shall be allocated 98%
to Regular Interest LT1AA, 1% to Regular Interest LT1ZZ and 1% to the
Group 3 Lower-Tier Regular Interests that are Corresponding Classes to any
Classes of Group 3 Certificates or Components that were increased as a
result of such Recovery so that the Uncertificated Principal Balance of
each such Corresponding Class of Group 3 Lower-Tier Regular Interests
equals 0.5% of the Corresponding Class of Group 3 Certificates or
Components after taking into account such Recoveries; provided, that if
less than 1% of the 3LT Marker Allocation Percentage of Recoveries is
needed to restore the Corresponding Classes of Group 3 Lower-Tier Regular
Interests as described in this paragraph, any excess amount shall be
allocated to Regular Interest LT1ZZ.
(e) Notwithstanding anything to the contrary contained herein, the
above distributions in this Section 5.11 (other than on the Certificates) are
deemed distributions, and distributions of funds from the Distribution Account
shall be made only in accordance with Sections 5.01, 5.02 and 5.03 hereof.
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates. The Classes of Senior Certificates
and the Subordinate Certificates shall be substantially in the forms set forth
in Exhibits X-0-X-0, X-0-X-X, X-0-X-0, X-0-X-0, X-0-X-0X, X-0-X-0X, X-0-X-0,
X-0-X-0X, X-0-X-0X, X-0-X-0, X-0-XX, X-0-X, X-XX-0, X-XX-0, X-XX-0, X-XX-0,
X-XX-0, X-XX-0, X-0-X-0, X-0-X-0, X-0-X-0, X-0-X-0, X-0-X-0 and C (reverse of
all Certificates) and shall, on original issue, be executed by the Trustee and
shall be authenticated and delivered by the Trustee to or upon the order of the
Depositor upon receipt by the Trustee of the documents specified in Section
2.01. The Classes of Certificates shall be available to investors in minimum
denominations of initial Certificate Balance and integral multiples in excess
thereof set forth in the Preliminary Statement. The Senior Certificates (other
than the Class 1-A-R Certificate), the Class CB-1, Class CB-2, Class CB-3, Class
3-M-1, Class 3-M-2, Class 3-B-1, Class 3-B-2 and Class 3-B-3 Certificates shall
initially be issued in book-entry form through the Depository and delivered to
the Depository or, pursuant to the Depository's instructions on behalf of the
Depository to, and deposited with, the Certificate Custodian, and all other
Classes of Certificates shall initially be issued in definitive,
fully-registered form.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by an authorized officer or signatory. Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures were affixed, authorized to sign on behalf of the Trustee
shall bind the Trustee, notwithstanding that such individuals or any of them
have ceased to be so authorized prior to the execution and delivery of such
Certificates or did not hold such offices or positions at the date of such
Certificate. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless such Certificate shall have been
manually authenticated by the Trustee substantially in the form provided for
herein, and such authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication.
Section 6.02 Registration of Transfer and Exchange of Certificates.
(a) The Trustee shall cause to be kept at an office or agency in the
city in which the Corporate Trust Office is located a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. The Trustee shall initially serve
as Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided.
(b) At the option of the Certificateholders, Certificates may be
exchanged for other Certificates of authorized denominations of a like Class,
tenor and aggregate Percentage Interest, upon surrender of the Certificates to
be exchanged at any such office or agency. Whenever any Certificates are so
surrendered for exchange, the Trustee shall execute, authenticate and deliver
the Certificates which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for transfer or exchange
shall (if so required by the Trustee or the Certificate Registrar) be duly
endorsed by, or be accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by, the
Holder thereof or its attorney duly authorized in writing.
(c)(i) Except as provided in paragraph (c)(iii) below, the
Book-Entry Certificates shall at all times remain registered in the name of the
Depository or its nominee and at all times: (A) registration of the Book-Entry
Certificates may not be transferred by the Trustee except to another Depository;
(B) the Depository shall maintain book-entry records with respect to the
Certificate Owners and with respect to ownership and transfers of such
Book-Entry Certificates; (C) ownership and transfers of registration of the
Book-Entry Certificates on the books of the Depository shall be governed by
applicable rules established by the Depository; (D) the Depository may collect
its usual and customary fees, charges and expenses from its Depository
Participants; (E) the Trustee shall deal with the Depository as the
representative of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of Holders under this Agreement, and requests
and directions for and votes of the Depository shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(F) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
(ii) All transfers by Certificate Owners of Book-Entry Certificates
shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing such Certificate
Owner. Each Depository Participant shall only transfer Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for
which it acts as agent in accordance with the Depository's normal
procedures.
(iii) If the Depository advises the Trustee in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and the Trustee or the Depositor is unable
to locate a qualified successor, the Trustee shall notify all Certificate
Owners, through the Depository, of the occurrence of such event and of the
availability of definitive, fully-registered Certificates (the "Definitive
Certificates") to Certificate Owners requesting the same. Upon surrender
to the Trustee of the related Class of Certificates by the Depository (or
by the Certificate Custodian, if it holds such Class on behalf of the
Depository), accompanied by the instructions from the Depository for
registration, the Trustee shall issue the Definitive Certificates. None of
the Servicers, the Depositor or the Trustee shall be liable for any delay
in delivery of such instruction and may conclusively rely on, and shall be
protected in relying on, such instructions. The Depositor shall provide
the Trustee with an adequate inventory of certificates to facilitate the
issuance and transfer of Definitive Certificates. Upon the issuance of
Definitive Certificates, the Trustee shall recognize the Holders of the
Definitive Certificates as Certificateholders hereunder.
(d) No transfer of a Private Certificate shall be made unless such
transfer is exempt from the registration requirements of the 1933 Act and any
applicable state securities laws or is made in accordance with the 1933 Act and
such laws. In the event of any such transfer, (i) unless such transfer is made
in reliance on Rule 144A under the 1933 Act, the Trustee or the Depositor may
require a written Opinion of Counsel (which may be in-house counsel) acceptable
to and in form and substance reasonably satisfactory to the Trustee and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Trustee or the Depositor and (ii) the
Trustee shall require a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached hereto as Exhibit G-1
and a certificate from such Certificateholder's prospective transferee
substantially in the form attached hereto either as Exhibit G-2A or as Exhibit
G-2B, which certificates shall not be an expense of the Trustee or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both. The Depositor shall provide to
any Holder of a Private Certificate and any prospective transferees designated
by any such Holder, information regarding the related Certificates and the
Mortgage Loans and such other information as shall be necessary to satisfy the
condition to eligibility set forth in Rule 144A(d)(4) for transfer of any such
certificate without registration thereof under the 1933 Act pursuant to the
registration exemption provided by Rule 144A. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
(e) No transfer of an ERISA Restricted Certificate shall be made
unless the transferee delivers to the Trustee either (i) a representation letter
in the form of Exhibit H from the transferee of such Certificate, which
representation letter shall not be an expense of the Depositor, the Trustee or
the Servicers, or (ii) in the case of any ERISA Restricted Certificate presented
for registration in the name of an employee benefit plan or arrangement,
including an individual retirement account, subject to ERISA, the Code, or any
federal, state or local law ("Similar Law") which is similar to ERISA or the
Code (collectively, a "Plan"), or a trustee or custodian of any of the
foregoing, an Opinion of Counsel in form and substance satisfactory to the
Trustee to the effect that the purchase or holding of such ERISA Restricted
Certificate by or on behalf of such Plan will not constitute or result in a
non-exempt prohibited transaction within the meaning of ERISA, Section 4975 of
the Code or Similar Law and will not subject the Trustee, the Depositor or the
Servicers to any obligation in addition to those undertaken in this Agreement,
which Opinion of Counsel shall not be an expense of the Depositor, the Trustee
or the Servicers. Any transferee of an ERISA Restricted Certificate that does
not comply with either clause (i) or (ii) of the preceding sentence will be
deemed to have made one of the representations set forth in Exhibit H. For
purposes of clause (i) of the second preceding sentence, such representation
shall be deemed to have been made to the Certificate Registrar by the acceptance
by a Certificate Owner of a Book-Entry Certificate of the beneficial interest in
any such Class of ERISA-Restricted Certificates, unless the Certificate
Registrar shall have received from the transferee an alternative representation
acceptable in form and substance to the Depositor. Notwithstanding anything else
to the contrary herein, any purported transfer of an ERISA Restricted
Certificate to or on behalf of a Plan without the delivery to the Trustee of an
Opinion of Counsel satisfactory to the Trustee as described above shall be void
and of no effect.
Neither the Trustee nor the Certificate Registrar shall have any
liability for transfers of Book-Entry Certificates made through the book-entry
facilities of the Depository or between or among any Depository Participants or
Certificate Owners, made in violation of applicable restrictions. The Trustee
may rely and shall be fully protected in relying upon information furnished by
the Depository with respect to its Depository Participants and furnished by the
Depository Participants with respect to indirect participating firms and Persons
shown on the books of such indirect participating firms as direct or indirect
Certificate Owners.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Trustee shall be under no liability to any Person for
any registration of transfer of any ERISA Restricted Certificate that is in fact
not permitted by this Section 6.02 or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
(f) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Residual
Certificate unless such Ownership Interest is a pro rata undivided
interest.
(iii) In connection with any proposed transfer of any Ownership
Interest in a Residual Certificate, the Trustee shall require delivery to
it, in form and substance satisfactory to it, of an affidavit in the form
of Exhibit I hereto from the proposed transferee.
(iv) Notwithstanding the delivery of an affidavit by a proposed
transferee under clause (iii) above, if a Responsible Officer of the
Trustee has actual knowledge that the proposed transferee is not a
Permitted Transferee, no transfer of any Ownership Interest in a Residual
Certificate to such proposed transferee shall be effected.
(v) No Ownership Interest in a Residual Certificate may be purchased
by or transferred to any Person that is not a U.S. Person, unless (A) such
Person holds such Residual Certificate in connection with the conduct of a
trade or business within the United States and furnishes the transferor
and the Trustee with an effective Internal Revenue Service Form W-8ECI (or
successor thereto) or (B) the transferee delivers to both the transferor
and the Trustee an Opinion of Counsel from a nationally-recognized tax
counsel to the effect that such transfer is in accordance with the
requirements of the Code and the regulations promulgated thereunder and
that such transfer of a Residual Certificate will not be disregarded for
federal income tax purposes.
(vi) Any attempted or purported transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
6.02 shall be absolutely null and void and shall vest no rights in the
purported transferee. If any purported transferee shall, in violation of
the provisions of this Section 6.02, become a Holder of a Residual
Certificate, then the prior Holder of such Residual Certificate that is a
Permitted Transferee shall, upon discovery that the registration of
transfer of such Residual Certificate was not in fact permitted by this
Section 6.02, be restored to all rights as Holder thereof retroactive to
the date of registration of transfer of such Residual Certificate. The
Trustee shall be under no liability to any Person for any registration of
transfer of a Residual Certificate that is in fact not permitted by this
Section 6.02 or for making any distributions due on such Residual
Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of the Agreement so long as the
transfer was registered in accordance with this Section 6.02. The Trustee
shall be entitled to recover from any Holder of a Residual Certificate
that was in fact not a Permitted Transferee at the time such distributions
were made all distributions made on such Residual Certificate. Any such
distributions so recovered by the Trustee shall be distributed and
delivered by the Trustee to the prior Holder of such Residual Certificate
that is a Permitted Transferee.
(vii) If any Person other than a Permitted Transferee acquires any
Ownership Interest in a Residual Certificate in violation of the
restrictions in this Section 6.02, then the Trustee, based on information
provided to the Trustee by the Servicers, will provide to the Internal
Revenue Service, and to the Persons specified in Section 860E(e)(3) and
(6) of the Code, information needed to compute the tax imposed under
Section 860E(e) of the Code on transfers of residual interests to
disqualified organizations. The expenses of the Trustee under this clause
(vii) shall be reimbursable by the Trust.
(viii) No Ownership Interest in a Residual Certificate shall be
acquired by a Plan or any Person acting on behalf of a Plan.
(g) [Reserved]
(h) No service charge shall be imposed for any transfer or exchange
of Certificates of any Class, but the Trustee may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be
destroyed by the Certificate Registrar.
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Certificate Registrar or the
Certificate Registrar receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate, and (b) there is delivered to the Trustee, the
Depositor and the Certificate Registrar such security or indemnity reasonably
satisfactory to each, to save each of them harmless, then, in the absence of
actual notice to the Trustee or the Certificate Registrar that such Certificate
has been acquired by a bona fide purchaser, the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like tenor, Class and Percentage
Interest but bearing a number not contemporaneously outstanding. Upon the
issuance of any new Certificate under this Section, the Trustee may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee and the Certificate Registrar) connected therewith.
Any duplicate Certificate issued pursuant to this Section shall constitute
complete and indefeasible evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
Section 6.04 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Depositor, the Servicers, the
Trustee, the Certificate Registrar and any agent of the Depositor, the
Servicers, the Trustee or the Certificate Registrar may treat the Person in
whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions pursuant to Section 5.01 and for all
other purposes whatsoever, and none of the Depositor, the Servicers, the
Trustee, the NIMS Insurer, the Certificate Registrar or any agent of the
Depositor, the Servicers, the Trustee, the NIMS Insurer or the Certificate
Registrar shall be affected by notice to the contrary.
ARTICLE VII
THE DEPOSITOR AND THE SERVICERS
Section 7.01 Respective Liabilities of the Depositor and the
Servicers. The Depositor and the Servicers shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by the Depositor and the Servicers herein. By way of
illustration and not limitation, the Depositor is not liable for the servicing
and administration of the Mortgage Loans, nor is it obligated by Section 8.01 to
assume any obligations of any Servicer or to appoint a designee to assume such
obligations, nor is it liable for any other obligation hereunder that it may,
but is not obligated to, assume unless it elects to assume such obligation in
accordance herewith.
Section 7.02 Merger or Consolidation of the Depositor or a Servicer.
The Depositor and each Servicer will each keep in full effect its existence,
rights and franchises as a separate entity under the laws governing its
organization, and will each obtain and preserve its qualification to do business
as a foreign corporation in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of this Agreement,
the Certificates or any of the Mortgage Loans and to perform its respective
duties under this Agreement.
Any Person into which the Depositor or a Servicer may be merged or
consolidated, or any corporation resulting from any merger or consolidation to
which the Depositor or a Servicer shall be a party, or any Person succeeding to
the business of the Depositor or a Servicer, shall be the successor of the
Depositor or such Servicer, as the case may be, hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however, that
the successor or surviving Person to a Servicer shall be qualified to service
mortgage loans on behalf of FNMA or FHLMC.
Section 7.03 Limitation on Liability of the Depositor, the Servicers
and Others. None of the Depositor, the Servicers or any of the directors,
officers, employees or agents of the Depositor or of the Servicers shall be
under any liability to the Trust Estate or the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Servicers or any such Person
against any breach of warranties or representations made herein or any liability
which would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Depositor, the Servicers and any director,
officer, employee or agent of the Depositor or the Servicers may rely in good
faith on any document of any kind prima facie properly executed and submitted by
any Person respecting any matters arising hereunder. The Depositor, the
Servicers and any director, officer, employee or agent of the Depositor or the
Servicers shall be indemnified by the Trust Estate and held harmless against any
loss, liability or expense incurred in connection with any legal action relating
to this Agreement or the Certificates, other than any loss, liability or expense
related to any specific Mortgage Loan or Mortgage Loans (except as any such
loss, liability or expense shall be otherwise reimbursable pursuant to this
Agreement) and any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of duties hereunder or
by reason of reckless disregard of obligations and duties hereunder. None of the
Depositor or the Servicers shall be under any obligation to appear in, prosecute
or defend any legal action which is not incidental to its respective duties
under this Agreement and which in its opinion may involve it in any expense or
liability; provided, however, that the Depositor or a Servicer may in its
discretion undertake any such action which it may deem necessary or desirable in
respect to this Agreement and the rights and duties of the parties hereto and
the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust Estate, and the Depositor and such
Servicer shall be entitled to be reimbursed therefor out of amounts attributable
to the Mortgage Loans on deposit in the applicable Servicer Custodial Account as
provided by Section 3.12.
Section 7.04 Depositor and Servicers Not to Resign. Subject to the
provisions of Section 7.02, none of the Depositor or the Servicers shall resign
from its respective obligations and duties hereby imposed on it except upon
determination that its duties hereunder are no longer permissible under
applicable law. Any such determination permitting the resignation of the
Depositor or a Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Trustee. No such resignation by a Servicer shall become
effective until the Trustee or a successor Servicer shall have assumed such
Servicer's responsibilities and obligations in accordance with Section 8.05
hereof.
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default. If any one of the following events
("Events of Default") shall occur and be continuing:
(a) any failure by a Servicer to remit amounts to the Trustee for
deposit to the Distribution Account in the amount and manner provided herein so
as to enable the Trustee to distribute to Holders of Certificates any payment
required to be made under the terms of such Certificates and this Agreement
which continues unremedied by 3:00 P.M. New York time on the related
Distribution Date; or
(b) failure on the part of a Servicer duly to observe or perform in
any material respect any other covenants or agreements of such Servicer set
forth in the Certificates or in this Agreement, which covenants and agreements
continue unremedied for a period of 30 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to such Servicer by the Trustee, the NIMS Insurer or the Depositor, or to such
Servicer, the Depositor, the NIMS Insurer and the Trustee by the Holders of
Certificates evidencing Voting Rights aggregating not less than 25% of all
Certificates affected thereby; or
(c) the entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the appointment of
a conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings against a Servicer,
or for the winding up or liquidation of a 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 a 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 a Servicer or of
or relating to substantially all of its property; or a Servicer shall admit in
writing its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligations;
then, and in each and every such case, so long as an Event of Default shall not
have been remedied by such Servicer, either the Trustee or the Depositor may,
and at the direction of the Holders of Certificates evidencing Voting Rights
aggregating not less than 51% of all Certificates affected thereby shall, by
notice then given in writing to such Servicer (and to the Trustee, if given by
the Depositor, and to the Depositor, if given by the Trustee), terminate all of
the rights and obligations of such Servicer under this Agreement. On or after
the receipt by such Servicer of such written notice, all authority and power of
such Servicer under this Agreement, whether with respect to the Certificates or
the Mortgage Loans or otherwise, shall pass to and be vested in the Trustee
pursuant to and under this Section 8.01 and Section 8.05(a), unless and until
such time as the Trustee shall appoint a successor Servicer pursuant to Section
8.05, and, without limitation, the Trustee is hereby authorized and empowered to
execute and deliver, on behalf of such Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement of the
Mortgage Loans and related documents, or otherwise, including, without
limitation, the recordation of the assignments of the Mortgage Loans to it. Such
Servicer agrees to cooperate with the Trustee in effecting the termination of
the responsibilities and rights of such Servicer hereunder, including, without
limitation, the transfer to the Trustee for the administration by it of all cash
amounts that have been deposited by such Servicer in the related Servicer
Custodial Account or thereafter received by such Servicer with respect to the
Mortgage Loans. Upon obtaining notice or knowledge of the occurrence of any
Event of Default, the Person obtaining such notice or knowledge shall give
prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register and to each Rating Agency. All
costs and expenses (including attorneys' fees) incurred in connection with
transferring the Mortgage Files to a successor Servicer and amending this
Agreement to reflect such succession as a Servicer pursuant to this Section 8.01
shall be paid by such predecessor Servicer. Notwithstanding the termination of
such Servicer pursuant hereto, such Servicer shall remain liable for any causes
of action arising out of any Event of Default occurring prior to such
termination.
Section 8.02 Remedies of Trustee. During the continuance of any
Event of Default, so long as such Event of Default shall not have been remedied,
the Trustee, in addition to the rights specified in Section 8.01, shall have the
right, in its own name as trustee of an express trust, to take all actions now
or hereafter existing at law, in equity or by statute to enforce its rights and
remedies and to protect the interests, and enforce the rights and remedies, of
the Certificateholders (including the institution and prosecution of all
judicial, administrative and other proceedings and the filing of proofs of claim
and debt in connection therewith). Except as otherwise expressly provided in
this Agreement, no remedy provided for by this Agreement shall be exclusive of
any other remedy, and each and every remedy shall be cumulative and in addition
to any other remedy and no delay or omission to exercise any right or remedy
shall impair any such right or remedy or shall be deemed to be a waiver of any
Event of Default.
Section 8.03 Directions by Certificateholders and Duties of Trustee
During Event of Default. During the continuance of any Event of Default, Holders
of Certificates evidencing Voting Rights aggregating not less than 25% of each
Class of Certificates affected thereby may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee under this Agreement; provided,
however, that the Trustee shall be under no obligation to pursue any such
remedy, or to exercise any of the trusts or powers vested in it by this
Agreement (including, without limitation, (a) the conducting or defending of any
administrative action or litigation hereunder or in relation hereto, and (b) the
terminating of a Servicer or any successor Servicer from its rights and duties
as servicer hereunder) at the request, order or direction of any of the
Certificateholders, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity satisfactory to it against the costs,
expenses and liabilities which may be incurred therein or thereby and, provided
further, that, subject to the provisions of Section 9.01, the Trustee shall have
the right to decline to follow any such direction if the Trustee, based upon an
Opinion of Counsel, determines that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith determines that the action or
proceeding so directed would subject the Trustee to a risk of personal liability
or be unjustly prejudicial to the non-assenting Certificateholders.
Section 8.04 Action upon Certain Failures of a Servicer and upon
Event of Default. In the event that a Responsible Officer of the Trustee shall
have actual knowledge of any failure of a Servicer specified in Section 8.01(a)
or (b) which would become an Event of Default upon such Servicer's failure to
remedy the same after notice, the Trustee shall give notice thereof to such
Servicer. If a Responsible Officer of the Trustee shall have knowledge of an
Event of Default, the Trustee shall give prompt written notice thereof to the
Certificateholders.
Section 8.05 Trustee to Act; Appointment of Successor.
(a) Within 90 days of the time a Servicer receives a notice of
termination pursuant to Section 8.01, the Trustee (or other named successor)
shall be the successor in all respects to such 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 such Servicer by the terms and provisions hereof or
shall appoint a successor pursuant to Section 3.07. Notwithstanding the
foregoing, (i) the parties hereto agree that the Trustee, in its capacity as a
successor Servicer, immediately will assume all of the obligations of such
Servicer under this Agreement, (ii) the Trustee, in its capacity as a successor
Servicer, shall not be responsible for the lack of information and/or documents
that it cannot obtain through reasonable efforts and (iii) under no
circumstances shall any provision of this Agreement be construed to require the
Trustee, acting in its capacity as successor to such Servicer in its obligation
to advance, expend or risk its own funds or otherwise incur any financial
liability in the performance of its duties hereunder if it shall have reasonable
grounds for believing that such funds are non-recoverable. Subject to Section
8.05(b), as compensation therefor, the Trustee shall be entitled to such
compensation as the terminated Servicer would have been entitled to hereunder if
no such notice of termination had been given. Notwithstanding the above, the
Trustee may, if it shall be unwilling so to act, or shall, if it is legally
unable so to act, appoint, or petition a court of competent jurisdiction to
appoint, any established housing and home finance institution having a net worth
of not less than $10,000,000 as the successor to the terminated Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of such Servicer hereunder; provided, however, that any such
institution appointed as successor Servicer shall not, as evidenced in writing
by each Rating Agency, adversely affect the then current rating of any Class of
Certificates immediately prior to the termination of the terminated Servicer.
The appointment of a successor Servicer shall not affect any liability of the
predecessor Servicer which may have arisen under this Agreement prior to its
termination as a Servicer, nor shall any successor Servicer be liable for any
acts or omissions of the predecessor Servicer or for any breach by such
predecessor Servicer of any of its representations or warranties contained
herein or in any related document or agreement. Pending appointment of a
successor to the terminated Servicer hereunder, unless the Trustee is prohibited
by law from so acting, the Trustee shall act in such capacity as provided above.
The Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. All
Servicing Transfer Costs shall be paid by the predecessor Servicer upon
presentation of reasonable documentation of such costs, and if such predecessor
Servicer defaults in its obligation to pay such costs, such costs shall be paid
by the successor Servicer or the Trustee (in which case the successor Servicer
or the Trustee shall be entitled to reimbursement therefor from the assets of
the Trust).
(b) In connection with the appointment of a successor Servicer or
the assumption of the duties of a Servicer, as specified in Section 8.05(a), the
Trustee may make such arrangements for the compensation of such successor as it
and such successor shall agree, not to exceed the predecessor Servicer's
compensation hereunder.
(c) Any successor, including the Trustee, to a Servicer as a
Servicer shall during the term of its service as a servicer maintain in force
(i) a policy or policies of insurance covering errors and omissions in the
performance of its obligations as a Servicer hereunder and (ii) a fidelity bond
in respect of its officers, employees and agents to the same extent as each
Servicer is so required pursuant to Section 3.03.
Section 8.06 Notification to Certificateholders. Upon any
termination or appointment of a successor to a Servicer pursuant to this Article
VIII, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register and to the
NIMS Insurer and each Rating Agency.
ARTICLE IX
THE TRUSTEE
Section 9.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement as duties of the Trustee. In case an Event of Default
has occurred of which a Responsible Officer of the Trustee shall have actual
knowledge (which has not been cured or waived), the Trustee shall exercise such
of the rights and powers vested in it by this Agreement, and use the same degree
of care and skill in their exercise as a reasonably prudent investor would
exercise or use under the circumstances in the conduct of such investor's own
affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement; provided, however, that the
Trustee shall not be responsible for the accuracy of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by a Servicer or the Depositor hereunder.
(b) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own grossly negligent action, its own grossly
negligent failure to act or its own willful misfeasance; provided, however,
that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all such Events of Default which may have occurred,
the duties and obligations of the Trustee shall be determined solely by
the express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee by the Depositor or the Servicers and which on
their face, do not contradict the requirements of this Agreement;
(ii) The Trustee (in its individual capacity) shall not be
personally liable for an error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Trustee, unless it
shall be proved that the Trustee was grossly negligent in ascertaining the
pertinent facts;
(iii) The Trustee (in its individual capacity) shall not be
personally liable with respect to any action taken, suffered or omitted to
be taken by it in good faith in accordance with the direction of
Certificateholders as provided in Section 8.03;
(iv) The Trustee shall not be charged with knowledge of any default
specified in clauses (a) and (b) of Section 8.01 or an Event of Default
under clauses (c) and (d) of Section 8.01 unless a Responsible Officer of
the Trustee assigned to and working in the Corporate Trust Office obtains
actual knowledge of such failure or event or any Responsible Officer of
the Trustee receives written notice of such failure or event at its
Corporate Trust Office from a Servicer, the NIMS Insurer, the Depositor or
any Certificateholder; and
(v) Except to the extent provided in Section 8.05, no provision in
this Agreement shall require the Trustee to expend or risk its own funds
or otherwise incur any personal financial liability in the performance of
any of its duties as Trustee hereunder, or in the exercise of any of its
rights or powers, if the Trustee shall have reasonable grounds for
believing that repayment of funds or adequate indemnity or security
satisfactory to it against such risk or liability is not reasonably
assured to it.
Section 9.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 9.01:
(i) The Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties and the manner of
obtaining consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to the reasonable
regulations as the Trustee may prescribe;
(ii) The Trustee may consult with counsel and any written advice or
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such written advice or Opinion of
Counsel;
(iii) The Trustee shall not be under any obligation to exercise any
of the trusts or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders, pursuant to
the provisions of this Agreement, unless such Certificateholders shall
have offered to the Trustee reasonable security or indemnity satisfactory
to it against the costs, expenses and liabilities which may be incurred
therein or thereby; nothing contained herein shall, however, relieve the
Trustee of the obligation, upon the occurrence of an Event of Default
(which has not been cured or waived), to exercise such of the rights and
powers vested in it by this Agreement, and to use the same degree of care
and skill in their exercise as a prudent investor would exercise or use
under the circumstances in the conduct of such investor's own affairs;
(iv) The Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default which may have
occurred, the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing so to do by
Holders of Certificates of any Class evidencing, as to such Class,
Percentage Interests, aggregating not less than 50%; provided, however,
that if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Agreement,
the Trustee may require reasonable indemnity or security satisfactory to
it against such expense or liability or payment of such estimated expenses
as a condition to so proceeding;
(vi) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents,
attorneys, accountants, custodian or independent contractor; and
(vii) the right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the
Trustee shall not be answerable for other than its gross negligence or
willful misconduct in the performance of any such act.
Section 9.03 Trustee not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the execution
of, and the authentication on the Certificates) shall be taken as the statements
of the Depositor or the Servicers, as applicable, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Agreement or of the Certificates or any
Mortgage Loans save that the Trustee represents that, assuming due execution and
delivery by the other parties hereto, this Agreement has been duly authorized,
executed and delivered by it and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, subject, as to
enforcement of remedies, to applicable insolvency, receivership, moratorium and
other laws affecting the rights of creditors generally, and to general
principles of equity and the discretion of the court (regardless of whether
enforcement of such remedies is considered in a proceeding in equity or at law).
The Trustee shall not be accountable for the use or application by the Depositor
of funds paid to the Depositor in consideration of the assignment of the
Mortgage Loans hereunder by the Depositor.
The Trustee shall not at any time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Mortgage or any Mortgage Loan, or the perfection and priority of any
Mortgage or the maintenance of any such perfection and priority or for or with
respect to the sufficiency of the Trust or its ability to generate the payments
to be distributed to Certificateholders under this Agreement, including, without
limitation: the existence, condition and ownership of any Mortgaged Property;
the existence and enforceability of any hazard insurance thereon (other than if
the Trustee shall assume the duties of a Servicer pursuant to Section 8.05 and
thereupon only for the acts or omissions of the Trustee as a successor
Servicer); the validity of the assignment of any Mortgage Loan to the Trustee or
of any intervening assignment; the completeness of any Mortgage Loan; the
performance or enforcement of any Mortgage Loan (other than if the Trustee shall
assume the duties of a Servicer pursuant to Section 8.05 and thereupon only for
the acts or omissions of the Trustee as a successor Servicer); the compliance by
the Depositor or a Servicer with any warranty or representation made under this
Agreement or in any related document or the accuracy of any such warranty or
representation; any investment of monies by or at the direction of a Servicer or
any loss resulting therefrom, it being understood that the Trustee shall remain
responsible for any Trust property that it may hold in its individual capacity;
the acts or omissions of any of the Depositor, a Servicer (other than if the
Trustee shall assume the duties of a Servicer pursuant to Section 8.05 and
thereupon only for the acts or omissions of the Trustee as a successor
Servicer), any Subservicer or any Mortgagor; any action of a Servicer (other
than if the Trustee shall assume the duties of a Servicer pursuant to Section
8.05 and thereupon only for the acts or omissions of the Trustee as a Servicer)
or any Subservicer; the failure of a Servicer to act or perform any duties
required of it as agent of the Trust or the Trustee hereunder; or any action by
the Trustee taken at the instruction of a Servicer (other than if the Trustee
shall assume the duties of a Servicer pursuant to Section 8.05 and thereupon
only for the acts or omissions of the Trustee as a successor Servicer) or any
Subservicer; provided, however, that the foregoing shall not relieve the Trustee
of its obligation to perform its duties under this Agreement, including, without
limitation, the Trustee's (or Custodian's) review of the Mortgage Files pursuant
to Section 2.02. The Trustee shall execute and file any financing or
continuation statement in any public office at any time required to maintain the
perfection of any security interest or lien granted to it hereunder.
Section 9.04 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights it would have if it were not Trustee and may otherwise deal
with the Servicers or any of their affiliates with the same right it would have
if it were not the Trustee.
Section 9.05 Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be (a) an institution the deposits of which are
fully insured by the FDIC and (b) a corporation or banking association organized
and doing business under the laws of the United States of America or of any
State, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of not less than $50,000,000.00 and subject to
supervision or examination by Federal or State authority and (c) with respect to
every successor trustee or hereunder either an institution (i) the long-term
unsecured debt obligations of which are rated at least "A" by S&P and "A2" by
Xxxxx'x or (ii) whose serving as Trustee hereunder would not result in the
lowering of the ratings originally assigned to any Class of Certificates. The
Trustee shall not be an affiliate of the Depositor or the Servicers. If such
corporation or banking association publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 9.05, the combined
capital and surplus of such corporation or banking association shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. The principal office of the Trustee (other than the
initial Trustee) shall be in a state with respect to which an Opinion of Counsel
has been delivered to such Trustee at the time such Trustee is appointed Trustee
to the effect that the Trust will not be a taxable entity under the laws of such
state. In case at any time the Trustee shall cease to be eligible in accordance
with the provision of this Section 9.05, the Trustee shall resign immediately in
the manner and with the effect specified in Section 9.06.
Section 9.06 Resignation and Removal of Trustee. The Trustee may at
any time resign and be discharged from the trust hereby created by giving
written notice thereof to the Servicers, the NIMS Insurer and the Depositor and
mailing a copy of such notice to all Holders of record. The Trustee shall also
mail a copy of such notice of resignation to each Rating Agency. Upon receiving
such notice of resignation, the Depositor shall use its best efforts to promptly
appoint a successor Trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Trustee, and one copy to
the successor Trustee. If no successor Trustee shall have been so appointed and
shall have accepted appointment within 30 days after the giving of such notice
of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 9.05 and shall fail to resign after written
request therefor by the Depositor, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Depositor
may remove the Trustee and appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor.
The Holders of Certificates evidencing not less than 50% of the
Voting Rights may at any time remove the Trustee by written instrument or
instruments delivered to the Depositor and the Trustee; the Depositor shall
thereupon use its best efforts to appoint a successor Trustee in accordance with
this Section 9.06.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 9.06 shall
become effective upon acceptance of appointment by the successor Trustee as
provided in Section 9.07.
Section 9.07 Successor Trustee. Any successor Trustee appointed as
provided in Section 9.06 shall execute, acknowledge and deliver to the Depositor
and to its predecessor Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Trustee herein. The predecessor Trustee shall duly assign, transfer,
deliver and pay over to the successor Trustee the whole of the Mortgage Files
and related documents and statements held by it hereunder, together with all
instruments of transfer and assignment or other documents properly executed as
may be reasonably required to effect such transfer and such of the records or
copies thereof maintained by the predecessor Trustee in the administration
hereof as may be reasonably requested by the successor Trustee and shall
thereupon be discharged from all duties and responsibilities under this
Agreement; provided, however, that if the predecessor Trustee has been removed
pursuant to the third paragraph of Section 9.06, all reasonable expenses of the
predecessor Trustee incurred in complying with this Section 9.07 shall be
reimbursed by the Trust.
No successor Trustee shall accept appointment as provided in this
Section 9.07 unless at the time of such appointment such successor Trustee shall
be eligible under the provisions of Section 9.05.
Upon acceptance of appointment by a successor Trustee as provided in
this Section 9.07, the Depositor shall cooperate to mail notice of the
succession of such Trustee hereunder to the NIMS Insurer, all Holders of
Certificates at their addresses as shown in the Certificate Register and to each
Rating Agency. If the Depositor fails to mail such notice within ten days after
acceptance of appointment by the successor Trustee, the successor Trustee shall
cause such notice to be mailed at the expense of the Depositor.
Section 9.08 Merger or Consolidation of Trustee. Any corporation or
banking association into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation or banking association
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation or banking association succeeding to all or
substantially all of the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, if such corporation or banking association
is eligible under the provisions of Section 9.05, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section 9.09 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any of the provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any Mortgaged
Property may at the time be located or for any other reason, the Depositor and
the Trustee acting jointly shall have the power and shall execute and deliver
all instruments to appoint one or more Persons approved by the Trustee as
co-trustee or separate trustee of all or any part of the Trust Estate, and to
vest in such Person or Persons, in such capacity, such title to the Trust
Estate, or any part thereof, and, subject to the other provision of this Section
9.09, such powers, duties, obligations, rights and trusts as the Depositor and
the Trustee may consider necessary or desirable. If the Depositor shall not have
joined in such appointment within ten days after the receipt by it of a request
to do so, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor Trustee under Section 9.05 and no notice to Holders
of Certificates of the appointment of co-trustee(s) or separate trustee(s) shall
be required under Section 9.07. The Trustee shall be responsible for the fees of
any co-trustee or separate trustee appointed hereunder.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 9.09, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to a Servicer hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Estate or
any portion thereof in any such jurisdiction) shall be exercised and performed
by such separate trustee or co-trustee at the direction of the Trustee. No
trustee hereunder shall be held personally liable by reason of any act or
omission of any other trustee hereunder; provided, however, that no appointment
of a co-trustee or separate trustee hereunder shall relieve the Trustee of its
obligations hereunder.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article IX. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall become incapable of acting, resign or be removed, or shall be adjudged a
bankrupt or insolvent, or a receiver of its property shall be appointed, or any
public officer shall take charge or control of such trustee or co-trustee or of
its property or affairs for the purpose of rehabilitation, conservation or
liquidation, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
Section 9.10 Authenticating Agents. The Trustee may appoint one or
more authenticating agents ("Authenticating Agents") which shall be authorized
to act on behalf of the Trustee in authenticating Certificates. Initially, the
Authenticating Agent shall be Xxxxx Fargo Bank, N.A. Wherever reference is made
in this Agreement to the authentication of Certificates by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent must be acceptable to the
Depositor and must be a corporation or banking association organized and doing
business under the laws of the United States of America or of any State, having
a place of business in New York, New York, having a combined capital and surplus
of at least $15,000,000, authorized under such laws to do a trust business and
subject to supervision or examination by Federal or State authorities.
Any corporation or banking association into which any Authenticating
Agent may be merged or converted or with which it may be consolidated, or any
corporation or banking association resulting from any merger, conversion or
consolidation to which any Authenticating Agent shall be a party, or any
corporation or banking association succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Depositor. The Trustee may at
any time terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Depositor. Upon
receiving a notice of resignation or upon such a termination, or in case, at any
time any Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 9.10, the Trustee may appoint a successor
Authenticating Agent, shall give written notice of such appointment to the
Depositor and shall mail notice of such appointment to all Certificateholders.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally named as
Authenticating Agent.
Section 9.11 Trustee's Expenses. The Trustee and any director,
officer, employee or agent of the Trustee shall be indemnified and held harmless
by the Trust against any claims, damage, loss, liability or expense (including
reasonable attorney's fees) (a) incurred in connection with or arising from or
relating to (i) this Agreement, (ii) the Certificates, or (iii) the performance
of any of the Trustee's duties hereunder, other than any claims, damage, loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
gross negligence in the performance of any of the Trustee's duties hereunder,
(b) resulting from any tax or information return which was prepared by, or
should have been prepared by, the Servicers and (c) arising out of the transfer
of any ERISA-Restricted Certificate or Residual Certificate not in compliance
with ERISA. Without limiting the foregoing, except as otherwise agreed upon in
writing by the Depositor and the Trustee, and except for any such expense,
disbursement or advance as may arise from the Trustee's gross negligence, bad
faith or willful misconduct, the Trust shall reimburse the Trustee for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Agreement to the extent
permitted by Treasury Regulations Section 1.860G-1(b)(3)(ii) and (iii);
provided, however, that the Depositor and the Trustee intend to enter into a
separate agreement for custody-related services. Except as otherwise provided
herein, the Trustee shall not be entitled to payment or reimbursement for any
routine ongoing expenses incurred by the Trustee in the ordinary course of its
duties as Trustee, Certificate Registrar or Paying Agent hereunder or for any
other expenses. The provisions of this Section 9.11 shall survive the
termination of this Agreement or the resignation or removal of the Trustee
hereunder.
Section 9.12 Appointment of Custodian. The Trustee may at any time
on or after the Closing Date, with the consent of the Depositor and the
Servicers, appoint one or more Custodians to hold all or a portion of the
Mortgage Files as agent for the Trustee, by entering into a Custodial Agreement
in a form acceptable to the Depositor and the Servicers. Subject to this Article
IX, the Trustee agrees to comply with the terms of each Custodial Agreement and
to enforce the terms and provisions thereof against the Custodian for the
benefit of the Certificateholders. Each Custodian shall be a depository
institution subject to supervision by federal or state authority, shall have a
combined capital and surplus of at least $10,000,000 and shall be qualified to
do business in the jurisdiction in which it holds any Mortgage File.
Section 9.13 Paying Agents. The Trustee may appoint one or more
Paying Agents (each, a "Paying Agent") which shall be authorized to act on
behalf of the Trustee in making withdrawals from the Distribution Account and
distributions to Certificateholders as provided in Section 3.09, Section 5.02
and Section 5.03. Wherever reference is made in this Agreement to withdrawal
from the Distribution Account by the Trustee, such reference shall be deemed to
include such a withdrawal on behalf of the Trustee by a Paying Agent. Initially,
the Paying Agent shall be Xxxxx Fargo Bank, N.A. Whenever reference is made in
this Agreement to a distribution by the Trustee or the furnishing of a statement
to Certificateholders by the Trustee, such reference shall be deemed to include
such a distribution or furnishing on behalf of the Trustee by a Paying Agent.
Each Paying Agent shall provide to the Trustee such information concerning the
Distribution Account as the Trustee shall request from time to time. Each Paying
Agent must be reasonably acceptable to the Depositor and must be a corporation
or banking association organized and doing business under the laws of the United
States of America or of any state, having (except in the case of the Trustee) a
principal office and place of business in New York, New York, having a combined
capital and surplus of at least $15,000,000, authorized under such laws to do a
trust business and subject to supervision or examination by federal or state
authorities.
Any corporation into which any Paying Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Paying Agent shall be
a party, or any corporation succeeding to the corporate agency business of any
Paying Agent, shall continue to be the Paying Agent provided that such
corporation after the consummation of such merger, conversion, consolidation or
succession meets the eligibility requirements of this Section 9.13.
Any Paying Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Depositor; provided that the Paying Agent
has returned to the Distribution Account or otherwise accounted, to the
reasonable satisfaction of the Trustee, for all amounts it has withdrawn from
the Distribution Account. The Trustee may, upon prior written approval of the
Depositor, at any time terminate the agency of any Paying Agent by giving
written notice of termination to such Paying Agent and to the Depositor. Upon
receiving a notice of resignation or upon such a termination, or in case at any
time any Paying Agent shall cease to be eligible in accordance with the
provisions of the first paragraph of this Section 9.13, the Trustee may appoint,
upon prior written approval of the Depositor, a successor Paying Agent, shall
give written notice of such appointment to the Servicer and shall mail notice of
such appointment to all Certificateholders. Any successor Paying Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Paying Agent. The Trustee shall remain liable
for any duties and obligations assumed by its appointed Paying Agent.
Section 9.14 Limitation of Liability. The Certificates are executed
by the Trustee, not in its individual capacity but solely as Trustee of the
Trust, in the exercise of the powers and authority conferred and vested in it by
this Agreement. Each of the undertakings and agreements made on the part of the
Trustee in the Certificates is made and intended not as a personal undertaking
or agreement by the Trustee but is made and intended for the purpose of binding
only the Trust.
Section 9.15 Trustee May Enforce Claims Without Possession of
Certificates. All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and such preceding instituted by the Trustee shall
be brought in its own name or in its capacity as Trustee. Any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursement and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Certificateholders in respect of which such
judgment has been recovered.
Section 9.16 Suits for Enforcement. In case an Event of Default or
other default by a Servicer or the Depositor hereunder shall occur and be
continuing, the Trustee, in its discretion, may proceed to protect and enforce
its rights and the rights of the Holders of Certificates under this Agreement by
a suit, action or proceeding in equity or at law or otherwise, whether for the
specific performance of any covenant or agreement contained in this Agreement or
in aid of the execution of any power granted in this Agreement or for the
enforcement of any other legal, equitable or other remedy, as the Trustee, being
advised by counsel, shall deem most effectual to protect and enforce any of the
rights of the Trustee and the Certificateholders.
Section 9.17 Waiver of Bond Requirement. The Trustee shall be
relieved of, and each Certificateholder hereby waives, any requirement of any
jurisdiction in which the Trust, or any part thereof, may be located that the
Trustee post a bond or other surety with any court, agency or body whatsoever.
Section 9.18 Waiver of Inventory, Accounting and Appraisal
Requirement. The Trustee shall be relieved of, and each Certificateholder hereby
waives, any requirement of any jurisdiction in which the Trust, or any part
thereof, may be located that the Trustee file any inventory, accounting or
appraisal of the Trust with any court, agency or body at any time or in any
manner whatsoever.
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase or Liquidation of All
Mortgage Loans. Subject to Section 10.02, the respective obligations and
responsibilities of the Depositor, the Servicers and the Trustee created hereby
(other than the obligation of the Trustee to make certain payments to
Certificateholders after the Final Distribution Date and to send certain notices
as hereinafter set forth and the obligations of the Trustee pursuant to Sections
5.06(b) and 5.07(b)) shall terminate upon the last action required to be taken
by the Trustee on the Final Distribution Date pursuant to this Article X
following the earlier of (a) the later of (i) the purchase of all of the
Mortgage Loans in the Shifting Interest Loan Groups and all REO Property
relating thereto by an Auction Winner (as defined below) and (ii) the purchase
of all the Group 3 Mortgage Loans and all REO Property relating thereto by an
Auction Winner or (b) the final payment or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan remaining in the Trust Estate
and the disposition of all REO Property.
On any Distribution Date on which either of (i) the aggregate of the
Pool Stated Principal Balances of the Shifting Interest Loan Groups or (ii) the
aggregate Stated Principal Balance for Loan Group 3 is less than 10% of the
aggregate unpaid principal balance of the related Mortgage Loans as of the
Cut-off Date (each, a "Termination Date"), the Trustee will initiate an auction
process (the "Termination Auction") to sell such Mortgage Loans and the related
REO Property of such Loan Group or Loan Groups. The Trustee may not sell such
Mortgage Loans and related REO Property unless the proceeds of the sale, after
deduction of the expenses of the sale (including expenses for previously
attempted but unsuccessful Termination Auctions) and all unreimbursed fees and
advances (the "Minimum Bid Price"), is at least equal to (i) the aggregate
outstanding Class Certificate Balance of the related Certificates, plus all
accrued and unpaid interest thereon to the Distribution Date following the date
of the sale, in the case of the Shifting Interest Loan Groups or (ii) the sum of
the aggregate unpaid principal balance plus accrued interest for each Group 3
Mortgage Loan at the related Mortgage Interest Rate to but not including the
first day of the month in which such proceeds are distributed and the aggregate
fair market value of the related REO Property (as determined by the Servicers of
the related Mortgage Loans) as of the close of business on the third Business
Day next preceding the date upon which notice of any such termination is
furnished to Certificateholders pursuant to the sixth paragraph of this Article
X), in the case of Loan Group 3.
A Termination Auction may not occur until all Reimbursement Amounts
for the Mortgage Loans subject to such Termination Auction have been paid. The
Trustee shall determine if any Reimbursement Amount is outstanding in the event
a Termination Auction occurs and shall take such action as is required to cause
the applicable Servicer or the Seller to remit such Reimbursement Amount to the
Trustee for deposit into the Distribution Account prior to the Distribution Date
following the date of sale.
Regardless of the foregoing, in no event shall the Trust created
hereby continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof.
Within five (5) Business Days prior to the respective Termination
Date, the Trustee shall deliver a bid notice for the Mortgage Loans and the REO
Properties to at least three institutions that are regular purchasers and/or
sellers in the secondary market of residential whole mortgage loans (other than
Bank of America, National Association or any Affiliate thereof). The bid notice
shall specify the Mortgage Loans and the REO Properties that are being sold, and
identify the Minimum Bid Price and the other information necessary for the
bidders to make bids. All bids must be submitted to the Trustee on a date
determined by the Trustee, which date shall be set forth in the bid notice. Only
cash bids may be accepted. With respect to the Mortgage Loans and related REO
Properties to be purchased, if one or more bids that exceed the Minimum Bid
Price are received, the price (the "Termination Price") for such Mortgage Loans
and related REO Property shall be equal to the highest price bid by a bidder,
and such bidder (the "Auction Winner") shall complete the purchase of such
Mortgage Loans and related REO Properties at the Termination Price before the
next Distribution Date for the Certificates relating to such auctioned Mortgage
Loans and REO Properties. If, however, no bid equals or exceeds the Minimum Bid
Price for the applicable Mortgage Loans and related REO Properties, the Trustee
will continue to auction the applicable Mortgage Loans and related REO Property
every three months until the Minimum Bid Price is received.
Notice of any termination of a Loan Group or Loan Groups, specifying
the applicable date upon which the applicable Certificateholders may surrender
their Certificates to the Trustee for payment of the final distribution and for
cancellation, shall be given promptly by the Trustee by letter to the applicable
Certificateholders mailed not later than the 15th day of the month of such final
distribution specifying (1) the applicable Distribution Date upon which final
payment of the applicable Certificates will be made upon presentation and
surrender of such Certificates at the office or agency of the Trustee therein
designated, (2) the amount of any such final payment and (3) that the Record
Date otherwise applicable to such Distribution Date is not applicable, payments
being made only upon presentation and surrender of the applicable Certificates
at the office or agency of the Trustee therein specified.
Upon presentation and surrender of the applicable Certificates, the
Trustee shall cause to be distributed to the applicable Certificateholders of
each Class, in the order set forth in Sections 5.02 and 5.03 hereof, as
applicable, on the applicable Distribution Date, and in proportion to their
respective Percentage Interests, with respect to Certificateholders of the same
Class, all cash on hand in respect of the related REMIC (other than the amounts
retained to meet claims). An amount shall be distributed in respect of interest
and principal, as applicable, to the Uncertificated Lower-Tier Interests and to
the Uncertificated Group 3 Lower-Tier Interests in the same manner as principal
and interest are distributed to the Uncertificated Lower-Tier Interests and
Uncertificated Group 3 Lower-Tier Interests, respectively, as provided in
Section 5.11.
If the applicable Certificateholders do not surrender their
Certificates for final payment and cancellation on or before the Final
Distribution Date, the Trustee shall on such date cause all funds in the
Distribution Account not distributed in final distribution to such
Certificateholders of such Group to continue to be held by the Trustee in an
Eligible Account for the benefit of such Certificateholders and the Trustee
shall give a second written notice to the remaining applicable
Certificateholders to surrender their Certificates for cancellation and receive
a final distribution with respect thereto. If within one year after the second
notice all the applicable Certificates shall not have been surrendered for
cancellation, the Trustee may take appropriate steps, or may appoint an agent to
take appropriate steps, to contact the remaining applicable Certificateholders
concerning surrender of their Certificates, and the cost thereof shall be paid
out of the funds on deposit in such Eligible Account.
Section 10.02 Additional Termination Requirements.
(a) If an Auction Winner exercises its purchase option as provided
in Section 10.01, the related REMICs shall be terminated in accordance with the
following additional requirements, unless the Trustee has received an Opinion of
Counsel to the effect that the failure of the Trust to comply with the
requirements of this Section 10.02 will not (i) result in the imposition of
taxes on "prohibited transactions" of the Trust as defined in Section 860F of
the Code, or (ii) cause any REMIC created hereunder to fail to qualify as a
REMIC at any time that any related Certificates are outstanding:
(i) within 90 days prior to the Final Distribution Date set forth in
the notice given by the Trustee under Section 10.01, the Trustee shall
sell all of the assets of the Trust Estate to the applicable Auction
Winner or Auction Winners, as the case may be, for cash; and
(ii) the notice given by the Trustee pursuant to Section 10.01 shall
provide that such notice constitutes adoption of a plan of complete
liquidation of the applicable REMICs as of the date of such notice (or, if
earlier, the date on which such notice was mailed to Certificateholders).
The Trustee shall also ensure that such date is specified in the final tax
return of the applicable REMIC.
(b) By their acceptance of the Residual Certificate, the Holder
thereof hereby agrees to take such other action in connection with such plan of
complete liquidation as may be reasonably requested by the Depositor or the
Trustee.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment. This Agreement may be amended from time to
time by the Depositor, the Servicers and the Trustee with the consent of the
NIMS Insurer (only to the extent such amendment relates to the Group 3
Certificates) without the consent of any of the Certificateholders, (i) to cure
any ambiguity or mistake, (ii) to correct or supplement any provisions herein or
therein which may be inconsistent with any other provisions of this Agreement,
any amendment to this Agreement or the related Prospectus Supplement, (iii) to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of each REMIC created hereunder as a
REMIC at all times that any related Certificates are outstanding or to avoid or
minimize the risk of the imposition of any tax on any REMIC pursuant to the Code
that would be a claim against the Trust Estate, provided that (a) the Trustee
has received an Opinion of Counsel to the effect that such action is necessary
or desirable to maintain such qualification or to avoid or minimize the risk of
the imposition of any such tax and (b) such action shall not, as evidenced by
such Opinion of Counsel, adversely affect in any material respect the interests
of any Certificateholder, (iv) to change the timing and/or nature of deposits
into the Distribution Account provided that (a) such change shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect the
interests of any Certificateholder and (b) such change shall not adversely
affect the then-current rating of the Senior Certificates, the Class B
Certificates (other than the Class CB-6 Certificates) and Class M Certificates
as evidenced by a letter from each Rating Agency rating such Certificates to
such effect, (v) to provide for the rights of the NIMS Insurer and (vi) to make
any other provisions with respect to matters or questions arising under this
Agreement which shall not be materially inconsistent with the provisions of this
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder, provided that the amendment shall not be deemed to adversely
affect in any material respect the interests of the Certificateholders and no
Opinion of Counsel to that effect shall be required if the Person requesting the
amendment obtains a letter from each Rating Agency stating that the amendment
would not result in the downgrading or withdrawal of the respective ratings then
assigned to the Certificates.
This Agreement may also be amended from time to time by the
Depositor, the Servicers and the Trustee, with the consent of the NIMS Insurer
(if the NIMS Insurer is affected by such amendment) and the Holders of
Certificates of each Class of Certificates which is affected by such amendment,
evidencing, as to each such Class of Certificates, Percentage Interests
aggregating not less than 66-2/3%, for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Holders of such Certificates;
provided, however, that no such amendment shall (A) reduce in any manner the
amount of, or delay the timing of, collections of payments on Mortgage Loans or
distributions which are required to be made on any Certificate without the
consent of the Holder of such Certificate or (B) reduce the aforesaid percentage
required to consent to any such amendment, without the consent of the Holders of
all Certificates then Outstanding.
Prior to the solicitation of consent of Certificateholders in
connection with any such amendment, the party seeking such amendment shall
furnish the Trustee and the NIMS Insurer with an Opinion of Counsel stating
whether such amendment would adversely affect the qualification of any REMIC
created hereunder as a REMIC and notice of the conclusion expressed in such
Opinion of Counsel shall be included with any such solicitation. An amendment
made with the consent of all Certificateholders and executed in accordance with
this Section 11.01 shall be permitted or authorized by this Agreement
notwithstanding that such Opinion of Counsel may conclude that such amendment
would adversely affect the qualification of any REMIC created hereunder as a
REMIC.
Promptly after the execution of any such amendment or consent, the
Trustee shall furnish written notification of the substance of or a copy of such
amendment to each Certificateholder, the NIMS Insurer and to each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable requirements as the Trustee may prescribe.
Section 11.02 Recordation of Agreement; Counterparts. This Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Trustee and at the expense of the Trust on direction of Holders
of Certificates evidencing not less than 50% of all Voting Rights, but only upon
receipt of an Opinion of Counsel to the effect that such recordation materially
and beneficially affects the interests of Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 11.03 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust, or the obligations of the parties hereto, nor shall anything
herein set forth, or contained in the terms of the Certificates, be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of default and of the continuance thereof, as provided herein, and unless also
the Holders of Certificates evidencing Percentage Interests aggregating not less
than 25% of each Class of Certificates affected thereby shall have made written
request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding; it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder, or to enforce
any right under this Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all Certificateholders. For the protection
and enforcement of the provisions of this Section 11.03, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 11.04 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT APPLICATION OF THE
CONFLICTS OF LAWS PROVISIONS THEREOF, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
With respect to any claim arising out of this Agreement, each party
irrevocably submits to the exclusive jurisdiction of the courts of the State of
New York and the United States District Court located in the Borough of
Manhattan in The City of New York, and each party irrevocably waives any
objection which it may have at any time to the laying of venue of any suit,
action or proceeding arising out of or relating hereto brought in any such
courts, irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in any inconvenient forum and further
irrevocably waives the right to object, with respect to such claim, suit, action
or proceeding brought in any such court, that such court does not have
jurisdiction over such party, provided that service of process has been made by
any lawful means.
Section 11.05 Notices. All demands, notices, instructions,
directions, requests and communications required or permitted to be delivered
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by certified mail, return receipt requested,
(provided, however, that notices to the Trustee may be delivered by facsimile
and shall be deemed effective upon receipt) to (a) in the case of the Depositor,
Banc of America Funding Corporation, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Senior Vice President, (b) in the case of GreenPoint,
GreenPoint Mortgage Funding, Inc., 000 Xxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx
00000, Attention: Xxxxx Xxxxx and General Counsel; (c) in the case of BANA, 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: General Counsel;
(d) in the case of National City Mortgage, 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxx
00000, Attention: Xxxxxx X. Xxxxxxxx, Xxxx Xxxxx and X. Xxxxxxx Case; (e) in the
case of the Trustee, Xxxxx Fargo Bank, N.A., X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx
00000, Attention: BAFC, Series 2005-B, and for overnight delivery purposes,
Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000,
Attention: BAFC, Series 2005-B, with a copy to Xxxxx Fargo Bank, N.A., Sixth and
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, 00000, Attention: BAFC, Series 2005-B,
(f) in the case of Moody's, Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attn: Residential Mortgage Monitoring Group, (g) in
the case of S&P, Standard & Poor's, a division of the XxXxxx-Xxxx Companies,
Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attn: Residential Mortgage
Surveillance Manager and (h) in the case of the NIMS Insurer, such address
furnished to the parties hereto in writing by the NIMS Insurer; or, as to each
party, at such other address as shall be designated by such party in a written
notice to each other party; or, as to each party, at such other address as shall
be designated by such party in a written notice to each other party. Any notice
required or permitted to be mailed to a Certificateholder shall be given by
first class mail, postage prepaid, at the address of such Holder as shown in the
Certificate Register. Any notice to a Certificateholder so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
Section 11.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 11.07 Certificates Nonassessable and Fully Paid. It is the
intention of the Trustee that Certificateholders shall not be personally liable
for obligations of the Trust Estate, that the beneficial ownership interests
represented by the Certificates shall be nonassessable for any losses or
expenses of the Trust Estate or for any reason whatsoever, and that Certificates
upon execution, authentication and delivery thereof by the Trustee pursuant to
Section 6.01 are and shall be deemed fully paid.
Section 11.08 Access to List of Certificateholders. The Certificate
Registrar will furnish or cause to be furnished to the Trustee, within 15 days
after the receipt of a request by the Trustee in writing, a list, in such form
as the Trustee may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date for payment of
distributions to Certificateholders.
If three or more Certificateholders apply in writing to the Trustee,
and such application states that the applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates and is accompanied by a copy of the communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, afford such applicants access during
normal business hours to the most recent list of Certificateholders held by the
Trustee. If such a list is as of a date more than 90 days prior to the date of
receipt of such applicants' request, the Trustee shall promptly request from the
Certificate Registrar a current list as provided above, and shall afford such
applicants access to such list promptly upon receipt.
Every Certificateholder, by receiving and holding such list, agrees
with the Certificate Registrar and the Trustee that neither the Certificate
Registrar nor the Trustee shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was derived.
Section 11.09 Recharacterization. The parties to this Agreement
intend the conveyance by the Depositor to the Trustee of all of its right, title
and interest in and to the Mortgage Loans pursuant to this Agreement to
constitute a purchase and sale and not a loan. Notwithstanding the foregoing, to
the extent that such conveyance is held not to constitute a sale under
applicable law, it is intended that this Agreement shall constitute a security
agreement under applicable law and that the Depositor shall be deemed to have
granted to the Trustee a first priority security interest in all of the
Depositor's right, title and interest in and to the Mortgage Loans.
Section 11.10 Third Party Beneficiary. Nothing in this Agreement or
in the Certificates, expressed or implied, shall give to any Person, other than
the Certificateholders, the parties hereto and the NIMS Insurer and their
successors hereunder, any benefit or any legal or equitable right, remedy or
claim under this Agreement.
The NIMS Insurer shall be deemed a third-party beneficiary of this
Agreement to the same extent as if it were a party hereto, and shall have the
right to enforce the provisions of this Agreement directly against the parties
to this Agreement.
IN WITNESS WHEREOF, the Depositor, the Servicers and the Trustee
have caused this Agreement to be duly executed by their respective officers
thereunto duly authorized to be hereunto affixed, all as of the day and year
first above written.
BANC OF AMERICA FUNDING CORPORATION,
as Depositor
By:
----------------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President
GREENPOINT MORTGAGE FUNDING, INC.,
as a Servicer
By:
----------------------------------------
Name:
Title:
BANK OF AMERICA, NATIONAL ASSOCIATION,
as a Servicer
By:
----------------------------------------
Name:
Title:
NATIONAL CITY MORTGAGE CO.,
as a Servicer
By:
----------------------------------------
Name:
Title:
XXXXX FARGO BANK, N.A.,
as Trustee
By:
----------------------------------------
Name:
Title:
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 30th day of March, 2005, before me, a notary public in and
for the State of North Carolina, personally appeared Xxxxx Xxxxx, known to me
who, being by me duly sworn, did depose and say that he is a Senior Vice
President of Banc of America Funding Corporation, a Delaware corporation, one of
the parties that executed the foregoing instrument; and that he signed his name
thereto by order of the Board of Directors of such corporation.
---------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF CALIFORNIA )
) ss.:
COUNTY OF )
On the 30th day of March, 2005, before me, a notary public in and
for the State of California, personally appeared ___________, known to me who,
being by me duly sworn, did depose and say that she is a Vice President of
GreenPoint Mortgage Funding, Inc., a New York corporation, one of the parties
that executed the foregoing instrument; and that she signed her name thereto by
order of the Board of Directors of such corporation.
---------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________.
) ss.:
COUNTY OF MECKLENBURG )
)
On the 30th day of March, 2005, before me, a notary public in and
for the State of North Carolina, personally appeared ___________, known to me
who, being by me duly sworn, did depose and say that she is a Vice President of
Bank of America, National Association, a national banking association, one of
the parties that executed the foregoing instrument; and that she signed her name
thereto by order of the Board of Directors of such association.
---------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF OHIO )
) ss.:
COUNTY OF )
On the 30th day of March, 2005, before me, a notary public in and
for the State of Ohio, personally appeared ___________, known to me who, being
by me duly sworn, did depose and say that he is a Vice President of National
City Mortgage Co., an Ohio corporation, one of the parties that executed the
foregoing instrument; and that he signed his name thereto by order of the Board
of Directors of such corporation.
---------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF MINNESOTA )
) ss.:
COUNTY OF )
On the 30th day of March, 2005, before me, a notary public in and
for the State of Minnesota, personally appeared Xxxxx Xxxxxx, known to me who,
being by me duly sworn, did depose and say that he is an Assistant Vice
President of Xxxxx Fargo Bank, N.A., a national banking association, one of the
parties that executed the foregoing instrument; and that he signed his name
thereto by order of the Board of Directors of such association.
---------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________.
EXHIBIT A-1-A-1
[FORM OF FACE OF CLASS 1-A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 1-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 1-A-1
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2005
First Distribution Date: April 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $96,530,000.00
Pass-Through Rate: Variable
CUSIP No.: 05946X RT 2
ISIN No.: US05946XRT27
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated March 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
as a servicer (a "Servicer"), Bank of America, National Association, as a
servicer (a "Servicer"), National City Mortgage Co., as a servicer (a
"Servicer," and together with GreenPoint Mortgage Funding, Inc. and Bank of
America, National Association, the "Servicers"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers or the
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
Interest will accrue on these Certificates at a per annum rate equal to
the Net WAC of the Group 1 Mortgage Loans.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT A-1-A-R
[FORM OF FACE OF CLASS 1-A-R CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 1-A-R
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN FOUR "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CLASS 1-A-R CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW WHICH IS SIMILAR
TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), OR A PERSON ACTING ON BEHALF OF
OR INVESTING ASSETS OF A PLAN.
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN TAX RELATED TRANSFER
RESTRICTIONS DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT. ANY
ATTEMPTED OR PURPORTED TRANSFER OF THIS CLASS 1-A-R CERTIFICATE IN VIOLATION OF
SUCH RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN
THE PURPORTED TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 1-A-R
evidencing a 100% Percentage Interest in the distributions allocable to the
Certificate of the above-referenced Class with respect to a Trust consisting
primarily of three loan groups of adjustable interest rate mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2005
First Distribution Date: April 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $100.00
Initial Class Certificate
Balance of this Class: $100.00
Pass-Through Rate: Variable
CUSIP No.: 05946X RU 9
ISIN No.: US05946XRU99
THIS CERTIFIES THAT _________ is the registered owner of 100% Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated March 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
as a servicer (a "Servicer"), Bank of America, National Association, as a
servicer (a "Servicer"), National City Mortgage Co., as a servicer (a
"Servicer," and together with GreenPoint Mortgage Funding, Inc. and Bank of
America, National Association, the "Servicers"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers or the
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
Interest will accrue on these Certificates at a per annum rate equal to
the Net WAC of the Group 1 Mortgage Loans.
Any distribution of the proceeds of any remaining assets of the applicable
sub-accounts of the Distribution Account will be made only upon presentment and
surrender of this Class 1-A-R Certificate at the Corporate Trust Office.
Each Person who has or who acquires this Class 1-A-R Certificate shall be
deemed by the acceptance or acquisition thereof to have agreed to be bound by
the following provisions and the rights of each Person acquiring this Class
1-A-R Certificate are expressly subject to the following provisions: (i) each
Person holding or acquiring this Class 1-A-R Certificate shall be a Permitted
Transferee and shall promptly notify the Trustee of any change or impending
change in its status as a Permitted Transferee; (ii) no Person shall acquire an
ownership interest in this Class 1-A-R Certificate unless such ownership
interest is a pro rata undivided interest; (iii) in connection with any proposed
transfer of this Class 1-A-R Certificate, the Trustee shall require delivery to
it, in form and substance satisfactory to it, of an affidavit in the form of
Exhibit I to the Pooling and Servicing Agreement; (iv) notwithstanding the
delivery of an affidavit by a proposed transferee under clause (iii) above, if a
Responsible Officer of the Trustee has actual knowledge that the proposed
transferee is not a Permitted Transferee, no transfer of any Ownership Interest
in this Class 1-A-R Certificate to such proposed transferee shall be effected;
(v) this Class 1-A-R Certificate may not be purchased by or transferred to any
Person that is not a U.S. Person, unless (A) such Person holds this Class 1-A-R
Certificate in connection with the conduct of a trade or business within the
United States and furnishes the transferor and the Trustee with an effective
Internal Revenue Service Form W-8ECI (or any successor thereto) or (B) the
transferee delivers to both the transferor and the Trustee an Opinion of Counsel
from a nationally-recognized tax counsel to the effect that such transfer is in
accordance with the requirements of the Code and the regulations promulgated
thereunder and that such transfer of this Class 1-A-R Certificate will not be
disregarded for federal income tax purposes; (vi) any attempted or purported
transfer of this Class 1-A-R Certificate in violation of the provisions of such
restrictions shall be absolutely null and void and shall vest no rights in the
purported transferee; and (vii) if any Person other than a Permitted Transferee
acquires the Class 1-A-R Certificate in violation of such restrictions, then the
Trustee will provide to the Internal Revenue Service, and to the Persons
specified in Section 860E(e)(3) and (6) of the Code, information needed to
compute the tax imposed under Section 860E(e) of the Code on transfers of
residual interests to disqualified organizations.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT A-2-A-1
[FORM OF FACE OF CLASS 2-A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 2-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 2-A-1
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2005
First Distribution Date: April 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $120,572,000.00
Pass-Through Rate: Variable
CUSIP No.: 05946X RV 7
ISIN No.: US05946XRV72
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated March 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
as a servicer (a "Servicer"), Bank of America, National Association, as a
servicer (a "Servicer"), National City Mortgage Co., as a servicer (a
"Servicer," and together with GreenPoint Mortgage Funding, Inc. and Bank of
America, National Association, the "Servicers"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers or the
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
Interest will accrue on these Certificates at a per annum rate equal to
the Net WAC of the Group 2 Mortgage Loans.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT A-3-A-1
[FORM OF FACE OF CLASS 3-A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-A-1
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2005
First Distribution Date: April 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $279,069,000.00
Pass-Through Rate: Floating
CUSIP No.: 05946X RW 5
ISIN No.: US05946XRW55
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated March 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
as a servicer (a "Servicer"), Bank of America, National Association, as a
servicer (a "Servicer"), National City Mortgage Co., as a servicer (a
"Servicer," and together with GreenPoint Mortgage Funding, Inc. and Bank of
America, National Association, the "Servicers"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers or the
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
For each Distribution Date occurring prior to and including the applicable
Termination Date, interest will accrue on these Certificates at a per annum rate
equal to the lesser of (i) the sum of One-Month LIBOR and 0.23% and (ii) the
Subgroup 3A Cap. On each Distribution Date following the applicable Termination
Date, interest will accrue on these Certificates at a per annum rate equal to
the lesser of (i) the sum of One-Month LIBOR and 0.46% and (ii) the Subgroup 3A
Cap.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT A-3-A-1A
[FORM OF FACE OF CLASS 3-A-1A CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-A-1A
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-A-1A
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2005
First Distribution Date: April 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $118,000,000.00
Pass-Through Rate: Floating
CUSIP No.: 05946X RX 3
ISIN No.: US05946XRX39
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated March 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
as a servicer (a "Servicer"), Bank of America, National Association, as a
servicer (a "Servicer"), National City Mortgage Co., as a servicer (a
"Servicer," and together with GreenPoint Mortgage Funding, Inc. and Bank of
America, National Association, the "Servicers"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers or the
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
For each Distribution Date occurring prior to and including the applicable
Termination Date, interest will accrue on these Certificates at a per annum rate
equal to the lesser of (i) the sum of One-Month LIBOR and 0.21% and (ii) the
Subgroup 3A Cap. On each Distribution Date following the applicable Termination
Date, interest will accrue on these Certificates at a per annum rate equal to
the lesser of (i) the sum of One-Month LIBOR and 0.42% and (ii) the Subgroup 3A
Cap.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT A-3-A-1B
[FORM OF FACE OF CLASS 3-A-1B CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-A-1B
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
BENEFICIAL OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND
CERTAIN OTHER PROPERTY.
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-A-1B
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2005
First Distribution Date: April 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $32,000,000.00
Pass-Through Rate: Floating
CUSIP No.: 05946X RY 1
ISIN No.: US05946XRY12
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated March 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
as a servicer (a "Servicer"), Bank of America, National Association, as a
servicer (a "Servicer"), National City Mortgage Co., as a servicer (a
"Servicer," and together with GreenPoint Mortgage Funding, Inc. and Bank of
America, National Association, the "Servicers"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers or the
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
For each Distribution Date occurring prior to and including the applicable
Termination Date, interest will accrue on these Certificates at a per annum rate
equal to the lesser of (i) the sum of One-Month LIBOR and 0.31% and (ii) the
Subgroup 3A Cap. On each Distribution Date following the applicable Termination
Date, interest will accrue on these Certificates at a per annum rate equal to
the lesser of (i) the sum of One-Month LIBOR and 0.62% and (ii) the Subgroup 3A
Cap.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT A-3-A-2
[FORM OF FACE OF CLASS 3-A-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-A-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
BENEFICIAL OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND
CERTAIN OTHER PROPERTY.
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-A-2
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2005
First Distribution Date: April 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $107,349,000.00
Pass-Through Rate: Floating
CUSIP No.: 05946X RZ 8
ISIN No.: US05946XRZ86
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated March 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
as a servicer (a "Servicer"), Bank of America, National Association, as a
servicer (a "Servicer"), National City Mortgage Co., as a servicer (a
"Servicer," and together with GreenPoint Mortgage Funding, Inc. and Bank of
America, National Association, the "Servicers"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers or the
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
For each Distribution Date occurring prior to and including the applicable
Termination Date, interest will accrue on these Certificates at a per annum rate
equal to the lesser of (i) the sum of One-Month LIBOR and 0.24% and (ii) the
Subgroup 3B Cap. On each Distribution Date following the applicable Termination
Date, interest will accrue on these Certificates at a per annum rate equal to
the lesser of (i) the sum of One-Month LIBOR and 0.48% and (ii) the Subgroup 3B
Cap.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT A-3-A-2A
[FORM OF FACE OF CLASS 3-A-2A CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-A-2A
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
BENEFICIAL OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND
CERTAIN OTHER PROPERTY.
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-A-2A
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2005
First Distribution Date: April 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $78,000,000.00
Pass-Through Rate: Floating
CUSIP No.: 05946X SA 2
ISIN No.: US05946XSA27
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated March 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
as a servicer (a "Servicer"), Bank of America, National Association, as a
servicer (a "Servicer"), National City Mortgage Co., as a servicer (a
"Servicer," and together with GreenPoint Mortgage Funding, Inc. and Bank of
America, National Association, the "Servicers"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers or the
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
For each Distribution Date occurring prior to and including the applicable
Termination Date, interest will accrue on these Certificates at a per annum rate
equal to the lesser of (i) the sum of One-Month LIBOR and 0.22% and (ii) the
Subgroup 3B Cap. On each Distribution Date following the applicable Termination
Date, interest will accrue on these Certificates at a per annum rate equal to
the lesser of (i) the sum of One-Month LIBOR and 0.44% and (ii) the Subgroup 3B
Cap.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT A-3-A-2B
[FORM OF FACE OF CLASS 3-A-2B CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-A-2B
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
BENEFICIAL OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND
CERTAIN OTHER PROPERTY.
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-A-2B
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2005
First Distribution Date: April 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $22,000,000.00
Pass-Through Rate: Floating
CUSIP No.: 05946X SB 0
ISIN No.: US05946XSB00
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated March 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
as a servicer (a "Servicer"), Bank of America, National Association, as a
servicer (a "Servicer"), National City Mortgage Co., as a servicer (a
"Servicer," and together with GreenPoint Mortgage Funding, Inc. and Bank of
America, National Association, the "Servicers"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers or the
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
For each Distribution Date occurring prior to and including the applicable
Termination Date, interest will accrue on these Certificates at a per annum rate
equal to the lesser of (i) the sum of One-Month LIBOR and 0.31% and (ii) the
Subgroup 3B Cap. On each Distribution Date following the applicable Termination
Date, interest will accrue on these Certificates at a per annum rate equal to
the lesser of (i) the sum of One-Month LIBOR and 0.62% and (ii) the Subgroup 3B
Cap.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT A-3-A-3
[FORM OF FACE OF CLASS 3-A-3 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-A-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, EACH COMPONENT OF THIS CERTIFICATE
REPRESENTS BENEFICIAL OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE") AND CERTAIN OTHER PROPERTY.
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE TRUSTEE EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON
BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH
PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF FUNDS USED TO
PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH
TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
("PTE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE IS NO PLAN WITH
RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES AND LIABILITIES
FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF SUCH PLAN AND ALL OTHER PLANS
MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN SECTION
V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE
TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS
ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60) AT THE DATE OF ACQUISITION AND
ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE PLANS TO WHICH PTE
95-60 APPLIES, OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY
TO THE TRUSTEE, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE
BY OR ON BEHALF OF SUCH PLAN WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR
SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE SERVICERS OR THE TRUSTEE TO
ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING
AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN
SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION
LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON SHALL HAVE
PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE
PRECEDING SENTENCE TO THE TRUSTEE. THE POOLING AND SERVICING AGREEMENT PROVIDES
THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER
RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-A-3
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2005
First Distribution Date: April 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $70,714,000.00
Pass-Through Rate: Floating
CUSIP No.: 05946X SC 8
ISIN No.: US05946XSC82
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated March 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
as a servicer (a "Servicer"), Bank of America, National Association, as a
servicer (a "Servicer"), National City Mortgage Co., as a servicer (a
"Servicer," and together with GreenPoint Mortgage Funding, Inc. and Bank of
America, National Association, the "Servicers"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers or the
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
For the purposes of determining distributions of interest and in reduction
of the Class Certificate Balance, the Class 3-A-3 Certificates consist of two
components (each, a "Component" and individually, the "Class 3-A-3A Component"
and the "Class 3-A-3B Component"). The amount of interest which accrues on the
Class 3-A-3 Certificates in any month will equal the sum of the interest which
accrues on the Components. The Components are not severable.
For each Distribution Date occurring prior to and including the applicable
Termination Date, interest will accrue on the Class 3-A-3A Component at a per
annum rate equal to the lesser of (i) the sum of One-Month LIBOR and 0.30% and
(ii) the Subgroup 3A Cap. On each Distribution Date following the applicable
Termination Date, interest will accrue on the Class 3-A-3A Component at a per
annum rate equal to the lesser of (i) the sum of One-Month LIBOR and 0.60% and
(ii) the Subgroup 3A Cap. For each Distribution Date occurring prior to and
including the applicable Termination Date, interest will accrue on the Class
3-A-3B Component at a per annum rate equal to the lesser of (i) the sum of
One-Month LIBOR and 0.30% and (ii) the Subgroup 3B Cap. On each Distribution
Date following the applicable Termination Date, interest will accrue on the
Class 3-A-3B Component at a per annum rate equal to the lesser of (i) the sum of
One-Month LIBOR and 0.60% and (ii) the Subgroup 3B Cap.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT A-3-CE
[FORM OF FACE OF CLASS 3-CE CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-CE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
DIRECT OR INDIRECT BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE") AND CERTAIN OTHER PROPERTY.
THIS CLASS 3-CE CERTIFICATE IS SUBORDINATE TO THE OFFERED GROUP 3 CERTIFICATES
TO THE EXTENT DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THIS CLASS 3-CE CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH TIME AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED, SECTION 4975 OF THE CODE OR ANY MATERIALLY SIMILAR PROVISIONS
OF APPLICABLE FEDERAL, STATE OR LOCAL LAW WILL BE REGISTERED.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-CE
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2005
First Distribution Date: April 20, 2005
Percentage Interest: 100%
Initial Overcollateralization
Amount: $5,425,272.86
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest set forth above in that certain beneficial ownership interest evidenced
by all the Class 3-CE Certificates in the Trust Fund created pursuant to a
Pooling and Servicing Agreement in certain monthly distributions with respect to
a Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated March 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
as a servicer (a "Servicer"), Bank of America, National Association, as a
servicer (a "Servicer"), National City Mortgage Co., as a servicer (a
"Servicer," and together with GreenPoint Mortgage Funding, Inc. and Bank of
America, National Association, the "Servicers"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
The Class 3-CE Certificates are limited in right of payment to certain
collections and recoveries respecting the Group 3 Mortgage Loans and the Yield
Maintenance Agreements, all as more specifically set forth herein and in the
Pooling and Servicing Agreement.
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Servicers or the Trustee or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Trustee or the Depositor may require a written Opinion of Counsel
(which may be in-house counsel) acceptable to and in form and substance
reasonably satisfactory to the Trustee and the Depositor that such transfer may
be made pursuant to an exemption, describing the applicable exemption and the
basis therefor, from the 1933 Act and such laws or is being made pursuant to the
1933 Act and such laws, which Opinion of Counsel shall not be an expense of the
Trustee or the Depositor and (ii) the Trustee shall require a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Trustee or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT A-3-P
[FORM OF FACE OF CLASS 3-P CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-P
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED, SECTION 4975 OF THE CODE OR ANY MATERIALLY SIMILAR PROVISIONS
OF APPLICABLE FEDERAL, STATE OR LOCAL LAW WILL BE REGISTERED.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-P
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2005
First Distribution Date: April 20, 2005
Percentage Interest: 100%
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest set forth above in that certain beneficial ownership interest evidenced
by all the Class 3-P Certificates in the Trust Fund created pursuant to a
Pooling and Servicing Agreement in certain monthly distributions with respect to
a Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated March 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
as a servicer (a "Servicer"), Bank of America, National Association, as a
servicer (a "Servicer"), National City Mortgage Co., as a servicer (a
"Servicer," and together with GreenPoint Mortgage Funding, Inc. and Bank of
America, National Association, the "Servicers"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
The Class 3-P Certificates are limited in right of payment to Prepayment
Premiums received on the Mortgage Loans, as more specifically set forth herein
and in the Pooling and Servicing Agreement.
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Servicers or the Trustee or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Trustee or the Depositor may require a written Opinion of Counsel
(which may be in-house counsel) acceptable to and in form and substance
reasonably satisfactory to the Trustee and the Depositor that such transfer may
be made pursuant to an exemption, describing the applicable exemption and the
basis therefor, from the 1933 Act and such laws or is being made pursuant to the
1933 Act and such laws, which Opinion of Counsel shall not be an expense of the
Trustee or the Depositor and (ii) the Trustee shall require a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Trustee or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT B-CB-1
[FORM OF FACE OF CLASS CB-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class CB-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
OF THE CB CROSSED GROUPS AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class CB-1
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2005
First Distribution Date: April 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $4,760,000.00
Pass-Through Rate: Variable
CUSIP No.: 05946X SD 6
ISIN No.: US05946XSD65
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated March 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
as a servicer (a "Servicer"), Bank of America, National Association, as a
servicer (a "Servicer"), National City Mortgage Co., as a servicer (a
"Servicer," and together with GreenPoint Mortgage Funding, Inc. and Bank of
America, National Association, the "Servicers"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers or the
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
Interest will accrue on these Certificates as of any Distribution Date at
a per annum rate equal to the weighted average (based on the Group Subordinate
Amount for each Loan Group) of the Net WAC for each of the Group 1 and Group 2
Mortgage Loans.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT B-CB-2
[FORM OF FACE OF CLASS CB-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class CB-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
OF THE CB CROSSED GROUPS AND THE CLASS CB-1 CERTIFICATES AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class CB-2
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2005
First Distribution Date: April 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $3,715,000.00
Pass-Through Rate: Variable
CUSIP No.: 05946X SE 4
ISIN No.: US05946XSE49
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated March 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
as a servicer (a "Servicer"), Bank of America, National Association, as a
servicer (a "Servicer"), National City Mortgage Co., as a servicer (a
"Servicer," and together with GreenPoint Mortgage Funding, Inc. and Bank of
America, National Association, the "Servicers"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers or the
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
Interest will accrue on these Certificates as of any Distribution Date at
a per annum rate equal to the weighted average (based on the Group Subordinate
Amount for each Loan Group) of the Net WAC for each of the Group 1 and Group 2
Mortgage Loans.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT B-CB-3
[FORM OF FACE OF CLASS CB-3 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class CB-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
OF THE CB CROSSED GROUPS, THE CLASS CB-1 CERTIFICATES AND THE CLASS CB-2
CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class CB-3
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2005
First Distribution Date: April 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $2,438,000.00
Pass-Through Rate: Variable
CUSIP No.: 05946X SF 1
ISIN No.: US05946XSF14
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated March 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
as a servicer (a "Servicer"), Bank of America, National Association, as a
servicer (a "Servicer"), National City Mortgage Co., as a servicer (a
"Servicer," and together with GreenPoint Mortgage Funding, Inc. and Bank of
America, National Association, the "Servicers"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers or the
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
Interest will accrue on these Certificates as of any Distribution Date at
a per annum rate equal to the weighted average (based on the Group Subordinate
Amount for each Loan Group) of the Net WAC for each of the Group 1 and Group 2
Mortgage Loans.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT B-CB-4
[FORM OF FACE OF CLASS CB-4 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class CB-4
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
OF THE CB CROSSED GROUPS, THE CLASS CB-1 CERTIFICATES, THE CLASS CB-2
CERTIFICATES AND THE CLASS CB-3 CERTIFICATES AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE TRUSTEE EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON
BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH
PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF FUNDS USED TO
PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH
TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
("PTE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE IS NO PLAN WITH
RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES AND LIABILITIES
FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF SUCH PLAN AND ALL OTHER PLANS
MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN SECTION
V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE
TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS
ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60) AT THE DATE OF ACQUISITION AND
ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE PLANS TO WHICH PTE
95-60 APPLIES, OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY
TO THE TRUSTEE, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE
BY OR ON BEHALF OF SUCH PLAN WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR
SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE SERVICERS OR THE TRUSTEE TO
ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING
AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN
SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION
LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON SHALL HAVE
PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE
PRECEDING SENTENCE TO THE TRUSTEE. THE POOLING AND SERVICING AGREEMENT PROVIDES
THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER
RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class CB-4
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2005
First Distribution Date: April 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,857,000.00
Pass-Through Rate: Variable
CUSIP No.: 05946X SK 0
ISIN No.: US05946XSK09
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated March 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
as a servicer (a "Servicer"), Bank of America, National Association, as a
servicer (a "Servicer"), National City Mortgage Co., as a servicer (a
"Servicer," and together with GreenPoint Mortgage Funding, Inc. and Bank of
America, National Association, the "Servicers"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers or the
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
Interest will accrue on these Certificates as of any Distribution Date at
a per annum rate equal to the weighted average (based on the Group Subordinate
Amount for each Loan Group) of the Net WAC for each of the Group 1 and Group 2
Mortgage Loans.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Trustee or the Depositor may require a written Opinion of Counsel
(which may be in-house counsel) acceptable to and in form and substance
reasonably satisfactory to the Trustee and the Depositor that such transfer may
be made pursuant to an exemption, describing the applicable exemption and the
basis therefor, from the 1933 Act and such laws or is being made pursuant to the
1933 Act and such laws, which Opinion of Counsel shall not be an expense of the
Trustee or the Depositor and (ii) the Trustee shall require a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Trustee or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT B-CB-5
[FORM OF FACE OF CLASS CB-5 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class CB-5
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
OF THE CB CROSSED GROUPS, THE CLASS CB-1 CERTIFICATES, THE CLASS CB-2
CERTIFICATES, THE CLASS CB-3 CERTIFICATES AND THE CLASS CB-4 CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE TRUSTEE EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON
BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH
PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF FUNDS USED TO
PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH
TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
("PTE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE IS NO PLAN WITH
RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES AND LIABILITIES
FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF SUCH PLAN AND ALL OTHER PLANS
MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN SECTION
V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE
TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS
ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60) AT THE DATE OF ACQUISITION AND
ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE PLANS TO WHICH PTE
95-60 APPLIES, OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY
TO THE TRUSTEE, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE
BY OR ON BEHALF OF SUCH PLAN WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR
SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE SERVICERS OR THE TRUSTEE TO
ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING
AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN
SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION
LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON SHALL HAVE
PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE
PRECEDING SENTENCE TO THE TRUSTEE. THE POOLING AND SERVICING AGREEMENT PROVIDES
THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER
RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-A
Class CB-5
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2005
First Distribution Date: April 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,394,000.00
Pass-Through Rate: Variable
CUSIP No.: 05946X SL 8
ISIN No.: US05946XSL81
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated March 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
as a servicer (a "Servicer"), Bank of America, National Association, as a
servicer (a "Servicer"), National City Mortgage Co., as a servicer (a
"Servicer," and together with GreenPoint Mortgage Funding, Inc. and Bank of
America, National Association, the "Servicers"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers or the
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
Interest will accrue on these Certificates as of any Distribution Date at
a per annum rate equal to the weighted average (based on the Group Subordinate
Amount for each Loan Group) of the Net WAC for each of the Group 1 and Group 2
Mortgage Loans.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Trustee or the Depositor may require a written Opinion of Counsel
(which may be in-house counsel) acceptable to and in form and substance
reasonably satisfactory to the Trustee and the Depositor that such transfer may
be made pursuant to an exemption, describing the applicable exemption and the
basis therefor, from the 1933 Act and such laws or is being made pursuant to the
1933 Act and such laws, which Opinion of Counsel shall not be an expense of the
Trustee or the Depositor and (ii) the Trustee shall require a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Trustee or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT B-CB-6
[FORM OF FACE OF CLASS CB-6 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class CB-6
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
OF THE CB CROSSED GROUPS, THE CLASS CB-1 CERTIFICATES, THE CLASS CB-2
CERTIFICATES, THE CLASS CB-3 CERTIFICATES, THE CLASS CB-4 CERTIFICATES AND THE
CLASS CB-5 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE TRUSTEE EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON
BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH
PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF FUNDS USED TO
PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH
TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
("PTE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE IS NO PLAN WITH
RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES AND LIABILITIES
FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF SUCH PLAN AND ALL OTHER PLANS
MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN SECTION
V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE
TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS
ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60) AT THE DATE OF ACQUISITION AND
ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE PLANS TO WHICH PTE
95-60 APPLIES, OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY
TO THE TRUSTEE, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE
BY OR ON BEHALF OF SUCH PLAN WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR
SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE SERVICERS OR THE TRUSTEE TO
ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING
AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN
SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION
LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON SHALL HAVE
PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE
PRECEDING SENTENCE TO THE TRUSTEE. THE POOLING AND SERVICING AGREEMENT PROVIDES
THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER
RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class CB-6
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2005
First Distribution Date: April 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $928,881.00
Pass-Through Rate: Variable
CUSIP No.: 05946X SM 6
ISIN No.: US05946XSM64
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated March 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
as a servicer (a "Servicer"), Bank of America, National Association, as a
servicer (a "Servicer"), National City Mortgage Co., as a servicer (a
"Servicer," and together with GreenPoint Mortgage Funding, Inc. and Bank of
America, National Association, the "Servicers"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers or the
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
Interest will accrue on these Certificates as of any Distribution Date at
a per annum rate equal to the weighted average (based on the Group Subordinate
Amount for each Loan Group) of the Net WAC for each of the Group 1 and Group 2
Mortgage Loans.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Trustee or the Depositor may require a written Opinion of Counsel
(which may be in-house counsel) acceptable to and in form and substance
reasonably satisfactory to the Trustee and the Depositor that such transfer may
be made pursuant to an exemption, describing the applicable exemption and the
basis therefor, from the 1933 Act and such laws or is being made pursuant to the
1933 Act and such laws, which Opinion of Counsel shall not be an expense of the
Trustee or the Depositor and (ii) the Trustee shall require a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Trustee or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT B-3-M-1
[FORM OF FACE OF CLASS 3-M-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-M-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
BENEFICIAL OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND
CERTAIN OTHER PROPERTY.
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE GROUP 3 SENIOR
CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE TRUSTEE EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON
BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH
PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF FUNDS USED TO
PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH
TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
("PTE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE IS NO PLAN WITH
RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES AND LIABILITIES
FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF SUCH PLAN AND ALL OTHER PLANS
MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN SECTION
V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE
TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS
ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60) AT THE DATE OF ACQUISITION AND
ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE PLANS TO WHICH PTE
95-60 APPLIES, OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY
TO THE TRUSTEE, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE
BY OR ON BEHALF OF SUCH PLAN WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR
SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE SERVICERS OR THE TRUSTEE TO
ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING
AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN
SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION
LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON SHALL HAVE
PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE
PRECEDING SENTENCE TO THE TRUSTEE. THE POOLING AND SERVICING AGREEMENT PROVIDES
THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER
RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-M-1
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2005
First Distribution Date: April 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $21,698,000.00
Pass-Through Rate: Floating
CUSIP No.: 05946X SG 9
ISIN No.: US05946XSG96
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated March 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
as a servicer (a "Servicer"), Bank of America, National Association, as a
servicer (a "Servicer"), National City Mortgage Co., as a servicer (a
"Servicer," and together with GreenPoint Mortgage Funding, Inc. and Bank of
America, National Association, the "Servicers"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers or the
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
For each Distribution Date occurring prior to and including the applicable
Termination Date, interest will accrue on these Certificates at a per annum rate
equal to the lesser of (i) the sum of One-Month LIBOR and 0.45% and (ii) the
Group 3 Cap. On each Distribution Date following the applicable Termination
Date, interest will accrue on these Certificates at a per annum rate equal to
the lesser of (i) the sum of One-Month LIBOR and 0.675% and (ii) the Group 3
Cap.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT B-3-M-2
[FORM OF FACE OF CLASS 3-M-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-M-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
BENEFICIAL OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND
CERTAIN OTHER PROPERTY.
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE GROUP 3 SENIOR
CERTIFICATES AND THE CLASS 3-M-1 CERTIFICATES AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE TRUSTEE EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON
BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH
PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF FUNDS USED TO
PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH
TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
("PTE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE IS NO PLAN WITH
RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES AND LIABILITIES
FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF SUCH PLAN AND ALL OTHER PLANS
MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN SECTION
V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE
TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS
ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60) AT THE DATE OF ACQUISITION AND
ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE PLANS TO WHICH PTE
95-60 APPLIES, OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY
TO THE TRUSTEE, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE
BY OR ON BEHALF OF SUCH PLAN WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR
SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE SERVICERS OR THE TRUSTEE TO
ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING
AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN
SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION
LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON SHALL HAVE
PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE
PRECEDING SENTENCE TO THE TRUSTEE. THE POOLING AND SERVICING AGREEMENT PROVIDES
THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER
RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-M-2
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2005
First Distribution Date: April 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $18,598,000.00
Pass-Through Rate: Floating
CUSIP No.: 05946X SH 7
ISIN No.: US05946XSH79
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated March 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
as a servicer (a "Servicer"), Bank of America, National Association, as a
servicer (a "Servicer"), National City Mortgage Co., as a servicer (a
"Servicer," and together with GreenPoint Mortgage Funding, Inc. and Bank of
America, National Association, the "Servicers"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers or the
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
For each Distribution Date occurring prior to and including the applicable
Termination Date, interest will accrue on these Certificates at a per annum rate
equal to the lesser of (i) the sum of One-Month LIBOR and 0.70% and (ii) the
Group 3 Cap. On each Distribution Date following the applicable Termination
Date, interest will accrue on these Certificates at a per annum rate equal to
the lesser of (i) the sum of One-Month LIBOR and 1.05% and (ii) the Group 3 Cap.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT B-3-B-1
[FORM OF FACE OF CLASS 3-B-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-B-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
BENEFICIAL OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND
CERTAIN OTHER PROPERTY.
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE GROUP 3 SENIOR
CERTIFICATES, THE CLASS 3-M-1 CERTIFICATES AND THE CLASS 3-M-2 CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE TRUSTEE EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON
BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH
PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF FUNDS USED TO
PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH
TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
("PTE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE IS NO PLAN WITH
RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES AND LIABILITIES
FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF SUCH PLAN AND ALL OTHER PLANS
MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN SECTION
V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE
TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS
ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60) AT THE DATE OF ACQUISITION AND
ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE PLANS TO WHICH PTE
95-60 APPLIES, OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY
TO THE TRUSTEE, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE
BY OR ON BEHALF OF SUCH PLAN WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR
SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE SERVICERS OR THE TRUSTEE TO
ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING
AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN
SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION
LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON SHALL HAVE
PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE
PRECEDING SENTENCE TO THE TRUSTEE. THE POOLING AND SERVICING AGREEMENT PROVIDES
THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER
RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-B-1
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2005
First Distribution Date: April 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $12,787,000.00
Pass-Through Rate: Floating
CUSIP No.: 05946X SJ 3
ISIN No.: US05946XSJ36
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated March 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
as a servicer (a "Servicer"), Bank of America, National Association, as a
servicer (a "Servicer"), National City Mortgage Co., as a servicer (a
"Servicer," and together with GreenPoint Mortgage Funding, Inc. and Bank of
America, National Association, the "Servicers"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers or the
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
For each Distribution Date occurring prior to and including the applicable
Termination Date, interest will accrue on these Certificates at a per annum rate
equal to the lesser of (i) the sum of One-Month LIBOR and 1.20% and (ii) the
Group 3 Cap. On each Distribution Date following the applicable Termination
Date, interest will accrue on these Certificates at a per annum rate equal to
the lesser of (i) the sum of One-Month LIBOR and 1.80% and (ii) the Group 3 Cap.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT B-3-B-2
[FORM OF FACE OF CLASS 3-B-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-B-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
BENEFICIAL OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND
CERTAIN OTHER PROPERTY.
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE GROUP 3 SENIOR
CERTIFICATES, THE CLASS 3-M-1 CERTIFICATES, THE CLASS 3-M-2 CERTIFICATES AND THE
CLASS 3-B-1 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE TRUSTEE EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON
BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH
PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF FUNDS USED TO
PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH
TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
("PTE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE IS NO PLAN WITH
RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES AND LIABILITIES
FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF SUCH PLAN AND ALL OTHER PLANS
MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN SECTION
V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE
TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS
ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60) AT THE DATE OF ACQUISITION AND
ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE PLANS TO WHICH PTE
95-60 APPLIES, OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY
TO THE TRUSTEE, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE
BY OR ON BEHALF OF SUCH PLAN WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR
SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE SERVICERS OR THE TRUSTEE TO
ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING
AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN
SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION
LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON SHALL HAVE
PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE
PRECEDING SENTENCE TO THE TRUSTEE. THE POOLING AND SERVICING AGREEMENT PROVIDES
THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER
RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-B-2
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2005
First Distribution Date: April 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $3,875,000.00
Pass-Through Rate: Floating
CUSIP No.: 05946X SN 4
ISIN No.: US05946XSN48
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated March 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
as a servicer (a "Servicer"), Bank of America, National Association, as a
servicer (a "Servicer"), National City Mortgage Co., as a servicer (a
"Servicer," and together with GreenPoint Mortgage Funding, Inc. and Bank of
America, National Association, the "Servicers"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers or the
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
For each Distribution Date occurring prior to and including the applicable
Termination Date, interest will accrue on these Certificates at a per annum rate
equal to the lesser of (i) the sum of One-Month LIBOR and 2.00% and (ii) the
Group 3 Cap. On each Distribution Date following the applicable Termination
Date, interest will accrue on these Certificates at a per annum rate equal to
the lesser of (i) the sum of One-Month LIBOR and 3.00% and (ii) the Group 3 Cap.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT B-3-B-3
[FORM OF FACE OF CLASS 3-B-3 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-B-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
BENEFICIAL OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND
CERTAIN OTHER PROPERTY.
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE GROUP 3 SENIOR
CERTIFICATES, THE CLASS 3-M-1 CERTIFICATES, THE CLASS 3-M-2 CERTIFICATES, THE
CLASS 3-B-1 CERTIFICATES AND THE CLASS 3-B-2 CERTIFICATES AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE TRUSTEE EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON
BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH
PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF FUNDS USED TO
PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH
TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
("PTE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE IS NO PLAN WITH
RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES AND LIABILITIES
FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF SUCH PLAN AND ALL OTHER PLANS
MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN SECTION
V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE
TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS
ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60) AT THE DATE OF ACQUISITION AND
ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE PLANS TO WHICH PTE
95-60 APPLIES, OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY
TO THE TRUSTEE, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE
BY OR ON BEHALF OF SUCH PLAN WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR
SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE SERVICERS OR THE TRUSTEE TO
ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING
AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN
SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION
LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON SHALL HAVE
PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE
PRECEDING SENTENCE TO THE TRUSTEE. THE POOLING AND SERVICING AGREEMENT PROVIDES
THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER
RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
Class 3-B-3
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2005
First Distribution Date: April 20, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $5,424,000.00
Pass-Through Rate: Floating
CUSIP No.: 05946X SP 9
ISIN No.: US05946XSP95
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated March 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc.,
as a servicer (a "Servicer"), Bank of America, National Association, as a
servicer (a "Servicer"), National City Mortgage Co., as a servicer (a
"Servicer," and together with GreenPoint Mortgage Funding, Inc. and Bank of
America, National Association, the "Servicers"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers or the
Trustee or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
For each Distribution Date occurring prior to and including the applicable
Termination Date, interest will accrue on these Certificates at a per annum rate
equal to the lesser of (i) the sum of One-Month LIBOR and 2.00% and (ii) the
Group 3 Cap. On each Distribution Date following the applicable Termination
Date, interest will accrue on these Certificates at a per annum rate equal to
the lesser of (i) the sum of One-Month LIBOR and 3.00% and (ii) the Group 3 Cap.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT C
[FORM OF REVERSE OF ALL CERTIFICATES]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-B
This Certificate is one of a duly authorized issue of Certificates
designated as Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, of the Series specified on the face hereof (collectively, the
"Certificates"), and representing a beneficial ownership interest in the Trust
created by the Pooling and Servicing Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Pooling and Servicing
Agreement or, except as expressly provided in the Pooling and Servicing
Agreement, subject to any liability under the Pooling and Servicing Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to the Pooling and Servicing Agreement for the
interests, rights and limitations of rights, benefits, obligations and duties
evidenced thereby, and the rights, duties and immunities of the Trustee.
Pursuant to the terms of the Pooling and Servicing Agreement, a
distribution will be made on the 20th day of each calendar month (or, if such
day is not a Business Day, the next Business Day) (each, a "Distribution Date"),
commencing on the first Distribution Date specified on the face hereof, to the
Person in whose name this Certificate is registered at the close of business on
the applicable Record Date in an amount required pursuant to the Pooling and
Servicing Agreement. The Record Date applicable to each Distribution Date is the
last Business Day of the month preceding the month of such Distribution Date or
the Business Day immediately preceding such Distribution Date, as set forth in
the Pooling and Servicing Agreement.
On each Distribution Date, the Trustee shall distribute out of the
Distribution Account to each Certificateholder of record on the related Record
Date (other than with respect to the final distribution) (a) by check mailed to
such Certificateholder entitled to receive a distribution on such Distribution
Date at the address appearing in the Certificate Register, or (b) upon written
request by the Holder of a Regular Certificate, by wire transfer or by such
other means of payment as such Certificateholder and the Trustee shall agree
upon, such Certificateholder's Percentage Interest in the amount to which the
related Class of Certificates is entitled in accordance with the priorities set
forth in Sections 5.02 and 5.03 of the Pooling and Servicing Agreement. The
final distribution on each Certificate will be made in like manner, but only
upon presentation and surrender of such Certificate to the Trustee as
contemplated by Section 10.01 of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Trustee and the rights of the Certificateholders under the
Pooling and Servicing Agreement at any time by the Depositor, the Servicers, the
Trustee and the NIMS Insurer (if any) with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon this Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register of the Trustee upon surrender of this Certificate
for registration of transfer at the Corporate Trust Office accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations and evidencing the same aggregate
Percentage Interest in the Trust will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest, as requested by the Holder surrendering the
same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Servicers, the Certificate Registrar and the Trustee
and any agent of the Depositor, the Servicers, the Certificate Registrar or the
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicers, the
Certificate Registrar, the Trustee, the Trustee or any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which any of (i) the aggregate Stated
Principal Balance of the CB Crossed Loan Group Mortgage Loans or (ii) the
aggregate Stated Principal Balance of the Group 3 Mortgage Loans is less than
10% of the aggregate unpaid principal balance of such Mortgage Loans as of the
Cut-off Date (each, a "Termination Date"), the Trustee will initiate an auction
process to sell such Mortgage Loans and the related REO Property. The Trustee
may not sell such Mortgage Loans and related REO Property unless the proceeds
are at least equal to the applicable amount set forth in the Pooling and
Servicing Agreement. If an initial auction of the applicable Mortgage Loans and
related REO Property does not produce a high enough bid, the Trustee will
continue to auction the applicable Mortgage Loans and related REO Property every
three months thereafter until such a bid is received. In the event that no such
termination occurs, the obligations and responsibilities created by the Pooling
and Servicing Agreement will terminate upon the later of the maturity or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust or the disposition of all property in respect thereof and
the distribution to Certificateholders of all amounts required to be distributed
pursuant to the Pooling and Servicing Agreement. In no event shall the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late ambassador of the United States to the Court of St. Xxxxx,
living on the date thereof.
Any term used herein that is defined in the Pooling and Servicing
Agreement shall have the meaning assigned in the Pooling and Servicing
Agreement, and nothing herein shall be deemed inconsistent with that meaning.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
XXXXX FARGO BANK, N.A.,
as Trustee
By
----------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the Pooling and Servicing
Agreement referenced herein.
XXXXX FARGO BANK, N.A.,
as Trustee
By
----------------------------------------
Authorized Signatory
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
_____________________________________________________________________________.
Dated:
______________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number _____________, or, if mailed by check, to ______________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ______________________, the assignee named
above, or ______________________, as its agent.
EXHIBIT D-1
LOAN GROUP 1 MORTGAGE LOAN SCHEDULE
[Available upon request from the Trustee]
EXHIBIT D-2
LOAN GROUP 2 MORTGAGE LOAN SCHEDULE
[Available upon request from the Trustee]
EXHIBIT D-3
LOAN GROUP 3 MORTGAGE LOAN SCHEDULE
[Available upon request from the Trustee]
EXHIBIT D-4
LOAN SUBGROUP 3A MORTGAGE LOAN SCHEDULE
[Available upon request from the Trustee]
EXHIBIT D-5
LOAN SUBGROUP 3B MORTGAGE LOAN SCHEDULE
[Available upon request from the Trustee]
EXHIBIT E
REQUEST FOR RELEASE OF DOCUMENTS
[date]
To: Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: The Pooling and Servicing Agreement, dated March 30, 2005, among Banc of
America Funding Corporation, as depositor (the "Depositor"), GreenPoint
Mortgage Funding, Inc., as a servicer ("GreenPoint"), Bank of America,
National Association, as a servicer ("BANA"), National City Mortgage Co.,
as a servicer ("National City"), and Xxxxx Fargo Bank, N.A., as trustee
(the "Trustee") and the Custodial Agreement, dated March 30, 2005, among
the Depositor, GreenPoint, BANA, National City, the Trustee and Wachovia
Bank, National Association, as custodian (the "Custodian")
-------------------------------------------------------------------------
In connection with the administration of the Mortgage Loans held by you,
as custodian, pursuant to the above-captioned Pooling and Servicing Agreement,
we request the release, and hereby acknowledge receipt, of the Mortgage File for
the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
--------------------
Mortgagor Name, Address & Zip Code:
----------------------------------
Reason for Requesting Documents (check one)
-------------------------------
____ 1. Mortgage Paid in Full
____ 2. Foreclosure
____ 3. Substitution
____ 4. Other Liquidation
____ 5. Nonliquidation Reason: ___________________
By:_______________________________________
(authorized signer of applicable
Servicer)
Issuer:___________________________________
Address:__________________________________
Date:_____________________________________
Custodian
---------
Wachovia Bank, National Association
Please acknowledge the execution of the above request by your signature and date
below:
__________________________________ _______________
Signature Date
Documents returned to Custodian:
__________________________________ _______________
Custodian Date
EXHIBIT F
FORM OF CERTIFICATION OF ESTABLISHMENT OF ACCOUNT
[Date]
[_______________] hereby certifies that it has established a [__________]
Account pursuant to Section [________] of the Pooling and Servicing Agreement,
dated March 30, 2005, among Banc of America Funding Corporation, as Depositor,
GreenPoint Mortgage Funding, Inc., as a servicer, Bank of America, National
Association, as a servicer, National City Mortgage Co., as a servicer, and Xxxxx
Fargo Bank, N.A., as trustee.
[_______________],
By:_______________________________________
Name:_____________________________________
Title:____________________________________
EXHIBIT G-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services - BAFC 2005-B
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2005-B, Class ___, having an initial aggregate
Certificate Balance as of March 30, 2005 of $___________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[______________] (the "Transferor") to [______________] (the "Transferee") of
the captioned Certificates (the "Transferred Certificates"), pursuant to Section
6.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated March 30, 2005, among Banc of America Funding Corporation, as
Depositor, GreenPoint Mortgage Funding, Inc., as a servicer (a "Servicer"), Bank
of America, National Association, as a servicer (a "Servicer"), National City
Mortgage Co., as a servicer (a "Servicer," and together with GreenPoint Mortgage
Funding, Inc. and Bank of America, National Association, the "Servicers"), and
Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"). All capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferor hereby certifies, represents
and warrants to you, as Trustee, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any
offer to buy or accept a transfer, pledge or other disposition of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security with
any person in any manner, (d) made any general solicitation with respect
to any Transferred Certificate, any interest in a Transferred Certificate
or any other similar security by means of general advertising or in any
other manner, or (e) taken any other action with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security, which (in the case of any of the acts described in
clauses (a) through (e) hereof) would constitute a distribution of the
Transferred Certificates under the Securities Act of 1933, as amended (the
"1933 Act"), would render the disposition of the Transferred Certificates
a violation of Section 5 of the 1933 Act or any state securities laws, or
would require registration or qualification of the Transferred
Certificates pursuant to the 1933 Act or any state securities laws.
Very truly yours,
__________________________________________
(Transferor)
By:_______________________________________
Name:_____________________________________
Title:____________________________________
EXHIBIT G-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services - BAFC 2005-B
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2005-B, Class ___, having an initial aggregate
Certificate Balance as of March 30, 2005 of $_________]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[_______________] (the "Transferor") to [_________________________________] (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 6.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated March 30, 2005, among Banc of America Funding
Corporation, as Depositor, GreenPoint Mortgage Funding, Inc., as a servicer,
Bank of America, National Association, as a servicer, National City Mortgage
Co., as a servicer, and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"). All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Trustee, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "1933 Act"), and has
completed one of the forms of certification to that effect attached hereto
as Annex 1 and Annex 2. The Transferee is aware that the sale to it is
being made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of another
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a Qualified Institutional Buyer that purchases
for its own account or for the account of another Qualified Institutional
Buyer to whom notice is given that the resale, pledge or transfer is being
made in reliance on Rule 144A, or (b) pursuant to another exemption from
registration under the 1933 Act.
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement and the Trust created pursuant
thereto, (e) any credit enhancement mechanism associated with the
Transferred Certificate, and (f) all related matters, that it has
requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgment below.
Very truly yours,
__________________________________________
(Transferor)
By:_______________________________________
Name:_____________________________________
Title:____________________________________
Nominee Acknowledgment
----------------------
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
__________________________________________
(Nominee)
By:_______________________________________
Name:_____________________________________
Title:____________________________________
ANNEX 1 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [__________________] (the
"Transferor") and Xxxxx Fargo Bank, N.A., as Trustee, with respect to the
mortgage pass-through certificates (the "Transferred Certificates") described in
the Transferee certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended,
because (i) the Transferee owned and/or invested on a discretionary basis
$______________________[1] in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
---------------------------
[1] Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any state, U.S. territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the state or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. bank, and not more than 18 months
preceding such date of sale in the case of a foreign bank or
equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a state or federal authority having supervision over
any such institutions, or is a foreign savings and loan association
or equivalent institute and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. savings and loan association, and
not more than 18 months preceding such date of sale in the case of a
foreign savings and loan association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a state, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency or
instrumentality of the state or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee, (ii) securities that are part
of an unsold allotment to or subscription by the Transferee, if the Transferee
is a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee did not
include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee may be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the
Transferred Certificates only for the
Yes No Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
__________________________________________
Print Name of Transferee
By:_______________________________________
Name:_____________________________________
Title:____________________________________
Date:_____________________________________
ANNEX 2 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [_________________] (the
"Transferor") and Xxxxx Fargo Bank, N.A., as Trustee, with respect to the
mortgage pass-through certificates (the "Transferred Certificates") described in
the Transferee certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A ("Rule 144A") under the Securities Act of 1933, as amended, because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, and (ii) as marked below, the Transferee alone
owned and/or invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Transferee or the Transferee's Family of Investment Companies, the cost
of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis
$____________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $__________________ in securities (other than
the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the
Transferred Certificates only for the
Yes No Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
__________________________________________
Print Name of Transferee or Adviser
By:_______________________________________
Name:_____________________________________
Title:____________________________________
IF AN ADVISER:
__________________________________________
Print Name of Transferee
By:_______________________________________
Date:_____________________________________
EXHIBIT G-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services - BAFC 2005-B
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2005-B, Class ___, having an initial aggregate
Certificate Balance as of March 30, 2005 of $_________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[_______________________] (the "Transferor") to [______________________________]
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 6.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated March 30, 2005, among Banc of
America Funding Corporation, as Depositor, GreenPoint Mortgage Funding, Inc., as
a servicer (a "Servicer"), Bank of America, National Association, as a servicer
(a "Servicer"), National City Mortgage Co., as a servicer (a "Servicer," and
together with GreenPoint Mortgage Funding, Inc. and Bank of America, National
Association, the "Servicers"), and Xxxxx Fargo Bank, N.A., as trustee (the
"Trustee"). All capitalized terms used herein and not otherwise defined shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferor hereby certifies, represents and warrants to you, as Trustee,
that:
1. Transferee is acquiring the Transferred Certificates for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "1933 Act"), or
any applicable state securities laws.
2. Transferee understands that (a) the Transferred Certificates have not
been and will not be registered under the 1933 Act or registered or qualified
under any applicable state securities laws, (b) neither the Depositor nor the
Trustee is obligated so to register or qualify the Transferred Certificates and
(c) neither the Transferred Certificates nor any security issued in exchange
therefor or in lieu thereof may be resold or transferred unless such resale or
transfer is exempt from the registration requirements of the 1933 Act and any
applicable state securities laws or is made in accordance with the 1933 Act and
laws, in which case (i) unless the transfer is made in reliance on Rule 144A
under the 1933 Act, the Trustee or the Depositor may require a written Opinion
of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Trustee and the Depositor that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the 1933 Act and such laws or is being
made pursuant to the 1933 Act and such laws, which Opinion of Counsel shall not
be an expense of the Trustee or the Depositor and (ii) the Trustee shall require
a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached to the Pooling and Servicing Agreement as
Exhibit G-1 and a certificate from such Certificateholder's prospective
transferee substantially in the form attached to the Pooling and Servicing
Agreement either as Exhibit G-2A or as Exhibit G-2B, which certificates shall
not be an expense of the Trustee or the Depositor; provided that the foregoing
requirements under clauses (i) and (ii) shall not apply to a transfer of a
Private Certificate between or among the Depositor, the Seller, their affiliates
or both.
3. The Transferee understands that it may not sell or otherwise transfer
the Transferred Certificates, any security issued in exchange therefor or in
lieu thereof or any interest in the foregoing except in compliance with the
provisions of Section 6.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A
TRANSACTION EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT
AND IN ACCORDANCE WITH THE PROVISIONS OF THE POOLING AND SERVICING
AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON
BEHALF OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN
INDIVIDUAL RETIREMENT ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR ANY FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A
"PLAN"), MAY RESULT IN "PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF
ERISA, THE CODE OR SIMILAR LAW. TRANSFER OF THIS CERTIFICATE WILL NOT BE
MADE UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (I) A
REPRESENTATION LETTER, IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE,
STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF, ANY SUCH PLAN
OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH PURCHASE OR (B) IF IT
IS AN INSURANCE COMPANY, THAT THE SOURCE OF FUNDS USED TO PURCHASE THIS
CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS
DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
("PTE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE IS NO BENEFIT
PLAN WITH RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES
AND LIABILITIES FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF SUCH BENEFIT
PLAN AND ALL OTHER BENEFIT PLANS MAINTAINED BY THE SAME EMPLOYER (OR
AFFILIATE THEREOF AS DEFINED IN SECTION V(A)(1) OF PTE 95-60) OR BY THE
SAME EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE TOTAL OF ALL RESERVES AND
LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS ARE DETERMINED UNDER
SECTION I(A) OF PTE 95-60) AT THE DATE OF ACQUISITION AND ALL PLANS THAT
HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE PLANS TO WHICH PTE 95-60
APPLIES, OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY
TO THE TRUSTEE, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS
CERTIFICATE BY OR ON BEHALF OF SUCH PLAN WILL NOT CONSTITUTE OR RESULT IN
A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION
4975 OF THE CODE OR SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE
SERVICERS OR THE TRUSTEE TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN
IN THE POOLING AND SERVICING AGREEMENT. EACH PERSON WHO ACQUIRES THIS
CERTIFICATE OR ANY INTEREST THEREIN SHALL BE DEEMED TO HAVE MADE THE
REPRESENTATIONS REQUIRED BY THE REPRESENTATION LETTER REFERRED TO IN THE
PRECEDING SENTENCE UNLESS SUCH PERSON SHALL HAVE PROVIDED SUCH
REPRESENTATION LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE
PRECEDING SENTENCE TO THE TRUSTEE. THE POOLING AND SERVICING AGREEMENT
PROVIDES THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF THESE
TRANSFER RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY
PURPORTED TRANSFEREE.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security with any person in any manner, (d) made any general solicitation by
means of general advertising or in any other manner, or (e) taken any other
action, that (in the case of any of the acts described in clauses (a) through
(e) above) would constitute a distribution of the Transferred Certificates under
the 1933 Act, would render the disposition of the Transferred Certificates a
violation of Section 5 of the 1933 Act or any state securities law or would
require registration or qualification of the Transferred Certificates pursuant
thereto. The Transferee will not act, nor has it authorized nor will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to the Transferred Certificates, any interest in the Transferred
Certificates or any other similar security.
5. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Transferred Certificates and distributions thereon, (c)
nature, performance and servicing of the Mortgage Loans., (d) the Pooling and
Servicing Agreement and the Trust created pursuant thereto, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501 (a) under the 1933 Act or an entity
in which all the equity owners come within such paragraphs and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Transferred
Certificates; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
__________________________________________
(Transferee)
By:_______________________________________
Name:_____________________________________
Title:____________________________________
Date:_____________________________________
Nominee Acknowledgment
----------------------
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
__________________________________________
(Nominee)
By:_______________________________________
Name:_____________________________________
Title:____________________________________
EXHIBIT H
FORM OF TRANSFEREE REPRESENTATION LETTER
FOR ERISA-RESTRICTED CERTIFICATES
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services - BAFC 2005-B
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2005-B, Class ___, having an initial aggregate
Certificate Balance as of March 30, 2005 of $_________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[_______________________] (the "Transferor") to [____________________________]
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 6.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated March 30, 2005, among Banc of
America Funding Corporation, as Depositor, GreenPoint Mortgage Funding, Inc., as
a servicer, Bank of America, National Association, as a servicer, National City
Mortgage Co., as a servicer, and Xxxxx Fargo Bank, N.A., as trustee (the
"Trustee"). All capitalized terms used herein and not otherwise defined shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to you, as
Trustee, either that:
(a) it is not, and is not acting on behalf of, an employee benefit plan or
arrangement, including an individual retirement account, subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), the Internal
Revenue Code of 1986, as amended (the "Code"), or any federal, state or local
law ("Similar Law") which is similar to ERISA or the Code (collectively, a
"Plan"), and it is not using the assets of any such Plan to effect the purchase
of the Transferred Certificates; or
(b) With respect to the Class 3-A-3, Class CB-4, Class CB-5, Class CB-6,
Class 3-M-1, Class 3-M-2, Class 3-B-1, Class 3-B-2 and Class 3-B-3 Certificates
only, it is an insurance company and the source of funds used to purchase the
Transferred Certificates is an "insurance company general account" (as defined
in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTE 95-60"),
60 Fed. Reg. 35925 (July 12, 1995)), there is no Plan with respect to which the
amount of such general account's reserves and liabilities for the contract(s)
held by or on behalf of such Plan and all other Plans maintained by the same
employer (or affiliate thereof as defined in Section V(a)(1) of PTE 95-60) or by
the same employee organization exceeds 10% of the total of all reserves and
liabilities of such general account (as such amounts are determined under
Section I(a) of PTE 95-60) at the date of acquisition and all Plans that have an
interest in such general account are Plans to which PTE 95-60 applies.
Capitalized terms used in and not otherwise defined herein shall have the
meaning assigned to them in the Pooling and Servicing Agreement.
Very truly yours,
__________________________________________
(Transferee)
By:_______________________________________
Name:_____________________________________
Title:____________________________________
Date:_____________________________________
EXHIBIT I
FORM OF AFFIDAVIT REGARDING TRANSFER OF
RESIDUAL CERTIFICATE PURSUANT TO SECTION 6.02
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2005-B
STATE OF )
) ss:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of _______________________________, the
proposed transferee (the "Transferee") of the Class 1-A-R Certificate (the
"Residual Certificate") issued pursuant to the Pooling and Servicing Agreement,
dated March 30, 2005, (the "Agreement"), relating to the above-referenced
Series, by and among Banc of America Funding Corporation, as depositor (the
"Depositor"), GreenPoint Mortgage Funding, Inc., as a servicer (a "Servicer"),
Bank of America, National Association, as a servicer (a "Servicer"), National
City Mortgage Co., as a servicer (a "Servicer," and together with GreenPoint
Mortgage Funding, Inc. and Bank of America, National Association, the
"Servicers"), and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings ascribed
to such terms in the Agreement. The Transferee has authorized the undersigned to
make this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the date
of the transfer, a Permitted Transferee. The Transferee is acquiring the
Residual Certificate either (i) for its own account or (ii) as nominee, trustee
or agent for another Person who is a Permitted Transferee and has attached
hereto an affidavit from such Person in substantially the same form as this
affidavit. The Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax will
be imposed on Transfers of the Residual Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will be
imposed on a "pass-through entity" holding the Certificate if at any time during
the taxable year of the pass-through entity a Person that is not a Permitted
Transferee is the record Holder of an interest in such entity. The Transferee
understands that, other than in the case of an "electing large partnership"
under Section 775 of the Code, such tax will not be imposed for any period with
respect to which the record Holder furnishes to the pass-through entity an
affidavit that such record Holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 6.02 of the
Agreement and understands the legal consequences of the acquisition of the
Residual Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 6.02 of the Agreement and the restrictions noted on
the face of the Certificate. The Transferee understands and agrees that any
breach of any of the representations included herein shall render the transfer
to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a transfer affidavit in the form of
this Affidavit from any Person to whom the Transferee attempts to transfer the
Residual Certificate, and in connection with any transfer by a Person for whom
the Transferee is acting as nominee, trustee or agent, and the Transferee will
not transfer the Residual Certificate or cause the Residual Certificate to be
transferred to any Person that the Transferee knows is not a Permitted
Transferee.
7. The Transferee historically has paid its debts as they have become due.
8. The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the Residual
Certificate.
9. The taxpayer identification number of the Transferee's nominee is
_____________.
10. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
11. The Transferee is aware that the Residual Certificate may be a
"noneconomic residual interest" within the meaning of Treasury Regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
12. The Transferee will not cause income from the Residual Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other
person.
13. If the Transferee is purchasing the Residual Certificate in a transfer
intended to meet the safe harbor provisions of Treasury Regulations Sections
1.860E-1(c), the Transferee has executed and attached Attachment A hereto.
14. The Transferee is not an employee benefit plan or arrangement,
including an individual retirement account, subject to ERISA, the Code or any
federal, state or local law which is similar to ERISA or the Code, and the
Transferee is not acting on behalf of such a plan or arrangement.
* * *
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer this _____ day of ________________, ____.
Print Name of Transferee
By:________________________________________
Name:
Title:
Personally appeared before me the above-named ___________________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the _______________________ of the Transferee, and
acknowledged that he executed the same as his free act and deed and the free act
and deed of the Transferee.
Subscribed and sworn before me this _____ day of ______________, _____
____________________________________________
NOTARY PUBLIC
My Commission expires the ____ day of
______________, ____
ATTACHMENT A
to
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4) OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, AND FOR NON-ERISA INVESTORS
Check the appropriate box:
|_| The consideration paid to the Transferee to acquire the Residual
Certificate equals or exceeds the excess of (a) the present value of the
anticipated tax liabilities over (b) the present value of the anticipated
savings associated with holding such Residual Certificate, in each case
calculated in accordance with U.S. Treasury Regulations Sections
1.860E-1(c)(7) and (8), computing present values using a discount rate
equal to the short-term Federal rate prescribed by Section 1274(d) of the
Code and the compounding period used by the Transferee.
OR
--
|_| The transfer of the Residual Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly:
(i) the Transferee is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income
from Residual Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the Transferee's
two fiscal years preceding the year of the transfer, the Transferee
had gross assets for financial reporting purposes (excluding any
obligation of a person related to the Transferee within the meaning
of U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess
of $100 million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Residual Certificate only to
another "eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that
satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii) and
(iii) and Section 1.860E-1(c)(5) of the U.S. Treasury Regulations;
(iv) the Transferee has determined the consideration paid to it to
acquire the Residual Certificate based on reasonable market
assumptions (including, but not limited to, borrowing and investment
rates, prepayment and loss assumptions, expense and reinvestment
assumptions, tax rates and other factors specific to the Transferee)
that it has determined in good faith; and
(v) in the event of any transfer of the Residual Certificate by the
Transferee, the Transferee will require its transferee to complete a
representation in the form of this Attachment A as a condition of
such transferee's purchase of the Residual Certificate.
EXHIBIT J
LIST OF RECORDATION STATES
Maryland
Florida
EXHIBIT K
[FORM OF INITIAL CERTIFICATION OF THE CUSTODIAN]
Banc of America Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: The Pooling and Servicing Agreement, dated March 30, 2005, among
Banc of America Funding Corporation, as depositor (the "Depositor"),
GreenPoint Mortgage Funding, Inc., as a servicer ("GreenPoint"),
Bank of America, National Association, as a servicer ("BANA"),
National City Mortgage Co., as a servicer ("National City"), and
Xxxxx Fargo Bank, N.A., as trustee (the "Trustee") and the Custodial
Agreement, dated March 30, 2005, among the Depositor, GreenPoint,
BANA, National City, the Trustee and Wachovia Bank, National
Association, as custodian (the "Custodian")
--------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as Custodian, hereby certifies that, except as may be specified in
any list of exceptions attached hereto, either (i) it has received the original
Mortgage Note relating to each of the Mortgage Loans listed on the Mortgage Loan
Schedule or (ii) if such original Mortgage Note has been lost, a copy of such
original Mortgage Note, together with a lost note affidavit.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement and the Custodial Agreement in connection with
this Initial Certification. The Custodian makes no representations as to: (i)
the validity, legality, sufficiency, enforceability, recordability or
genuineness of any of the documents contained in each Mortgage File or any of
the Mortgage Loans identified in the Mortgage Loan Schedule or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
Wachovia Bank, National Association
as Custodian
By:_______________________________________
Name:_____________________________________
Title:____________________________________
EXHIBIT L
FORM OF FINAL CERTIFICATION OF THE CUSTODIAN
[__________ __, ____]
Banc of America Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: The Pooling and Servicing Agreement, dated March 30, 2005, among
Banc of America Funding Corporation, as depositor (the "Depositor"),
GreenPoint Mortgage Funding, Inc., as a servicer ("GreenPoint"),
Bank of America, National Association, as a servicer ("BANA"),
National City Mortgage Co., as a servicer ("National City"), and
Xxxxx Fargo Bank, N.A., as trustee (the "Trustee") and the Custodial
Agreement, dated March 30, 2005, among the Depositor, GreenPoint,
BANA, National City, the Trustee and Wachovia Bank, National
Association, as custodian (the "Custodian")
--------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as Custodian, hereby certifies that, as to each Mortgage Loan
listed in the Mortgage Loan Schedule, except as may be specified in any list of
exceptions attached hereto, such Mortgage File contains all of the items
required to be delivered pursuant to Section 2.01(b) of the Pooling and
Servicing Agreement.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement and the Custodial Agreement in connection with
this Final Certification. The Custodian makes no representations as to: (i) the
validity, legality, sufficiency, enforceability, recordability or genuineness of
any of the documents contained in each Mortgage File or any of the Mortgage
Loans identified in the Mortgage Loan Schedule or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
Wachovia Bank, National Association
as Custodian
By:_______________________________________
Name:_____________________________________
Title:____________________________________
EXHIBIT M
Form of Xxxxxxxx-Xxxxx Certification
Banc of America Funding Corporation
Mortgage Pass-Through Certificates, Series 2004-B
I, [________], a [_____________] of Banc of America Funding Corporation,
certify that:
1. I have reviewed this annual report on Form 10-K, and all reports on Form
8-K containing distribution or servicing reports filed in respect of
periods included in the year covered by this annual report of the Banc of
America Funding 2005-B Trust;
2. Based on my knowledge, the information in these reports, taken as a whole,
does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
the last day of the period covered by this annual report;
3. Based on my knowledge, the distribution or servicing information required
to be provided to the Trustee by each Servicer under the Pooling and
Servicing Agreement, dated March 30, 2005 (the "Pooling Agreement"), among
Banc of America Funding Corporation, as Depositor, GreenPoint Mortgage
Funding, Inc., as a Servicer, Bank of America, National Association, as a
Servicer, National City Mortgage Co., as a Servicer, and Xxxxx Fargo Bank,
N.A., as Trustee, for inclusion in these reports is included in these
reports;
4. Based on my knowledge and upon the annual compliance statements included
in the report and required to be delivered by the Servicers to the Trustee
in accordance with the terms of the Pooling Agreement, and except as
disclosed in the reports, each Servicer has fulfilled its obligations
under the Pooling Agreement; and
5. The reports disclose all significant deficiencies relating to each
Servicer's compliance with the minimum servicing standards based upon the
reports provided by independent public accountants after conducting
reviews in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or similar procedure as set forth in the Pooling
Agreement that are included in these reports.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: GreenPoint
Mortgage Funding, Inc., National City Mortgage Co. and Xxxxx Fargo Bank, N.A.
By:______________________________________
Name:
Title:
EXHIBIT N
FORM OF CERTIFICATION TO BE PROVIDED BY
THE TRUSTEE TO THE DEPOSITOR
Banc of America Funding Corporation
Mortgage Pass-Through Certificates, Series 2005-B
The Trustee hereby certifies to the Depositor and its officers, directors
and affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
1. I have reviewed this annual report on Form 10-K for the calendar year
[___] and all reports on Form 8-K containing distribution or servicing reports
filed in respect of periods included in the year covered by this annual report
of the Banc of America Funding 2005-B Trust;
2. Based on my knowledge, the distribution information in these reports on
Form 8-K filed in respect of periods included in the year covered by this annual
report on Form 10-K for the calendar year [___], taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which
such statements were made, not misleading as of the last day of the period
covered by that annual report; and
3. Based on my knowledge, the distribution or servicing information
required to be provided to the Trustee by each Servicer under the Pooling and
Servicing Agreement, dated March 30, 2005, among Banc of America Funding
Corporation, as depositor, GreenPoint Mortgage Funding, Inc., as a servicer,
Bank of America, National Association, as a servicer, National City Mortgage
Co., as a servicer, and Xxxxx Fargo Bank, N.A., as trustee, for inclusion in
these reports is included in these reports.
XXXXX FARGO BANK, N.A.
as Trustee
By:_____________________________________
Name:
Title:
EXHIBIT O
FORM OF YIELD MAINTENANCE AGREEMENTS
[Available upon request from the Trustee]
