BANC OF AMERICA FUNDING CORPORATION, as Depositor, as Master Servicer and Securities Administrator, and as Trustee POOLING AND SERVICING AGREEMENT Dated [_____] [__], 20[__] Mortgage Pass-Through Certificates Series 20[__]-[_]
Exhibit
4.1
BANC
OF
AMERICA FUNDING CORPORATION,
as
Depositor,
[__________],
as
Master
Servicer and Securities Administrator,
and
[__________],
as
Trustee
Dated
[_____] [__], 20[__]
Mortgage
Pass-Through Certificates
Series 20[__]-[_]
TABLE
OF
CONTENTS
Page
|
ARTICLE
I DEFINITIONS
|
8
|
|
|
Section
1.01
|
Defined
Terms.
|
8
|
|
Section
1.02
|
Interest
Calculations.
|
40
|
|
ARTICLE
II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES
|
40
|
|
|
Section
2.01
|
Conveyance
of Mortgage Loans.
|
40
|
|
Section
2.02
|
Acceptance
by the Trustee or Custodian of the Mortgage Loans.
|
44
|
|
Section
2.03
|
Representations,
Warranties and Covenants of the Master Servicer.
|
48
|
|
Section
2.04
|
Representations
and Warranties of the Depositor as to the Mortgage Loans.
|
49
|
|
Section
2.05
|
Designation
of Interests in the REMICs.
|
50
|
|
Section
2.06
|
Designation
of Start-up Day.
|
51
|
|
Section
2.07
|
REMIC
Certificate Maturity Date.
|
51
|
|
Section
2.08
|
Execution
and Delivery of Certificates.
|
51
|
|
Section
2.09
|
Establishment
of the Trust.
|
51
|
|
Section
2.10
|
Purpose
and Powers of the Trust.
|
51
|
|
ARTICLE
III ADMINISTRATION AND MASTER SERVICING OF MORTGAGE LOANS
|
52
|
|
|
Section
3.01
|
Master
Servicing of the Mortgage Loans.
|
52
|
|
Section
3.02
|
Monitoring
of Servicers.
|
53
|
|
Section
3.03
|
Fidelity
Bond; Errors and Omissions Insurance.
|
55
|
|
Section
3.04
|
Access
to Certain Documentation.
|
55
|
|
Section
3.05
|
Maintenance
of Primary Mortgage Insurance Policy; Claims.
|
55
|
|
Section
3.06
|
Rights
of the Depositor, the Securities Administrator and the Trustee
in Respect
of the Master Servicer.
|
56
|
|
Section
3.07
|
Trustee
to Act as Master Servicer.
|
56
|
|
Section
3.08
|
Servicer
Custodial Accounts and Escrow Accounts.
|
57
|
|
Section
3.09
|
Collection
of Mortgage Loan Payments; Master Servicer Custodial Account and
Certificate Account.
|
57
|
|
Section
3.10
|
Access
to Certain Documentation and Information Regarding the Mortgage
Loans.
|
60
|
|
Section
3.11
|
Permitted
Withdrawals from the Certificate Account and the Master Servicer
Custodial
Account.
|
60
|
|
Section
3.12
|
Maintenance
of Hazard Insurance and Other Insurance.
|
62
|
|
Section
3.13
|
Presentment
of Claims and Collection of Proceeds.
|
62
|
|
Section
3.14
|
Enforcement
of Due-On-Sale Clauses; Assumption Agreements.
|
62
|
|
Section
3.15
|
Realization
Upon Defaulted Mortgage Loans; REO Property.
|
63
|
|
Section
3.16
|
Trustee
to Cooperate; Release of Mortgage Files.
|
64
|
i
|
Section
3.17
|
Documents,
Records and Funds in Possession of the Master Servicer to be Held
for the
Trustee.
|
65
|
|
Section
3.18
|
Master
Servicer Compensation.
|
66
|
|
Section
3.19
|
Advances.
|
66
|
|
Section
3.20
|
Annual
Statement as to Compliance.
|
66
|
|
Section
3.21
|
Assessments
of Compliance and Attestation Reports.
|
67
|
|
Section
3.22
|
Reports
to the Commission.
|
70
|
|
ARTICLE
IV MASTER SERVICER’S CERTIFICATE
|
77
|
|
|
Section
4.01
|
Master
Servicer’s Certificate.
|
77
|
|
ARTICLE
V PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;REMIC
ADMINISTRATION
|
77
|
|
|
Section
5.01
|
Distributions.
|
77
|
|
Section
5.02
|
Priorities
of Distributions on the Certificates.
|
78
|
|
Section
5.03
|
[Reserved].
|
85
|
|
Section
5.04
|
Allocation
of Losses.
|
86
|
|
Section
5.05
|
Statements
to Certificateholders.
|
88
|
|
Section
5.06
|
REMIC
Tax Returns and Reports to Certificateholders.
|
93
|
|
Section
5.07
|
Tax
Matters Person.
|
94
|
|
Section
5.08
|
Rights
of the Tax Matters Person in Respect of the Securities
Administrator.
|
94
|
|
Section
5.09
|
REMIC
Related Covenants.
|
94
|
|
Section
5.10
|
Master
Servicer, Securities Administrator and Trustee
Indemnification.
|
95
|
|
ARTICLE
VI THE CERTIFICATES
|
96
|
|
|
Section
6.01
|
The
Certificates.
|
96
|
|
Section
6.02
|
Registration
of Transfer and Exchange of Certificates.
|
97
|
|
Section
6.03
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
102
|
|
Section
6.04
|
Persons
Deemed Owners.
|
102
|
|
ARTICLE
VII THE DEPOSITOR AND THE MASTER SERVICER
|
102
|
|
|
Section
7.01
|
Respective
Liabilities of the Depositor and the Master Servicer.
|
102
|
|
Section
7.02
|
Merger
or Consolidation of the Depositor or the Master Servicer.
|
103
|
|
Section
7.03
|
Limitation
on Liability of the Depositor, the Master Servicer and
Others.
|
103
|
|
Section
7.04
|
Depositor
and Master Servicer Not to Resign.
|
104
|
|
ARTICLE
VIII DEFAULT
|
104
|
|
|
Section
8.01
|
Events
of Default.
|
104
|
|
Section
8.02
|
Remedies
of Trustee.
|
106
|
|
Section
8.03
|
Directions
by Certificateholders and Duties of Trustee During Event of
Default.
|
107
|
ii
|
Section
8.04
|
Action
upon Certain Failures of the Master Servicer and upon Event of
Default.
|
107
|
|
Section
8.05
|
Trustee
to Act; Appointment of Successor.
|
107
|
|
Section
8.06
|
Notification
to Certificateholders.
|
109
|
|
ARTICLE
IX THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
|
109
|
|
|
Section
9.01
|
Duties
of Trustee and Securities Administrator.
|
109
|
|
Section
9.02
|
Certain
Matters Affecting the Trustee and the Securities
Administrator.
|
112
|
|
Section
9.03
|
Neither
Trustee nor Securities Administrator Liable for Certificates or
Mortgage
Loans.
|
113
|
|
Section
9.04
|
Trustee
and Securities Administrator May Own Certificates.
|
114
|
|
Section
9.05
|
Eligibility
Requirements for Trustee and the Securities Administrator.
|
114
|
|
Section
9.06
|
Resignation
and Removal of Trustee and the Securities Administrator.
|
115
|
|
Section
9.07
|
Successor
Trustee or Securities Administrator.
|
116
|
|
Section
9.08
|
Merger
or Consolidation of Trustee or Securities Administrator.
|
117
|
|
Section
9.09
|
Appointment
of Co-Trustee or Separate Trustee.
|
117
|
|
Section
9.10
|
Authenticating
Agents.
|
118
|
|
Section
9.11
|
Securities
Administrator’s Fees and Expenses and Trustee’s Fees and
Expenses.
|
119
|
|
Section
9.12
|
Appointment
of Custodian.
|
120
|
|
Section
9.13
|
Paying
Agents.
|
120
|
|
Section
9.14
|
Limitation
of Liability.
|
121
|
|
Section
9.15
|
Trustee
or Securities Administrator May Enforce Claims Without Possession
of
Certificates.
|
122
|
|
Section
9.16
|
Suits
for Enforcement.
|
122
|
|
Section
9.17
|
Waiver
of Bond Requirement.
|
122
|
|
Section
9.18
|
Waiver
of Inventory, Accounting and Appraisal Requirement.
|
122
|
|
ARTICLE
X TERMINATION
|
122
|
|
|
Section
10.01
|
Termination
upon Purchase or Liquidation of All Mortgage Loans.
|
122
|
|
Section
10.02
|
Additional
Termination Requirements.
|
125
|
|
ARTICLE
XI MISCELLANEOUS PROVISIONS
|
126
|
|
|
Section
11.01
|
Amendment.
|
126
|
|
Section
11.02
|
Recordation
of Agreement; Counterparts.
|
127
|
|
Section
11.03
|
Limitation
on Rights of Certificateholders.
|
128
|
|
Section
11.04
|
Governing
Law.
|
128
|
|
Section
11.05
|
Notices.
|
129
|
|
Section
11.06
|
Severability
of Provisions.
|
129
|
|
Section
11.07
|
Certificates
Nonassessable and Fully Paid.
|
129
|
|
Section
11.08
|
Access
to List of Certificateholders.
|
130
|
|
Section
11.09
|
Recharacterization.
|
130
|
|
Section
11.10
|
Regulation
AB Compliance; Intent of the Parties; Reasonableness.
|
131
|
|
Section
11.11
|
Third
Party Beneficiary.
|
131
|
iii
|
Section
11.12
|
Insolvency.
|
131
|
iv
EXHIBITS
|
Exhibit A-1A1
|
Form
of Face of Class 1-A-1 Certificate
|
|
Exhibit A-1A2
|
Form
of Face of Class 1-A-2 Certificate
|
|
Exhibit
A-2AR
|
Form
of Face of Class 2-A-R Certificate
|
|
Exhibit A-2A1
|
Form
of Face of Class 2-A-1 Certificate
|
|
Exhibit A-2A2
|
Form
of Face of Class 2-A-2 Certificate
|
|
Exhibit A-3A1
|
Form
of Face of Class 3-A-1 Certificate
|
|
Exhibit A-3A2
|
Form
of Face of Class 3-A-2 Certificate
|
|
Exhibit A-3A3
|
Form
of Face of Class 3-A-3 Certificate
|
|
Exhibit A-3A4
|
Form
of Face of Class 3-A-4 Certificate
|
|
Exhibit A-4A1
|
Form
of Face of Class 4-A-1 Certificate
|
|
Exhibit A-4A2
|
Form
of Face of Class 4-A-2 Certificate
|
|
Exhibit
A-4A3
|
Form
of Face of Class 4-A-3 Certificate
|
|
Exhibit B-JB1
|
Form
of Face of Class X-X-1 Certificate
|
|
Exhibit B-JB2
|
Form
of Face of Class X-X-2 Certificate
|
|
Exhibit B-JB3
|
Form
of Face of Class X-X-3 Certificate
|
|
Exhibit B-JB4
|
Form
of Face of Class X-X-4 Certificate
|
|
Exhibit B-JB5
|
Form
of Face of Class X-X-5 Certificate
|
|
Exhibit B-JB6
|
Form
of Face of Class X-X-6 Certificate
|
|
Exhibit B-XB1
|
Form
of Face of Class X-B-1 Certificate
|
|
Exhibit B-XB2
|
Form
of Face of Class X-B-2 Certificate
|
|
Exhibit B-XB3
|
Form
of Face of Class X-B-3 Certificate
|
|
Exhibit B-XB4
|
Form
of Face of Class X-B-4 Certificate
|
|
Exhibit B-XB5
|
Form
of Face of Class X-B-5 Certificate
|
|
Exhibit B-XB6
|
Form
of Face of Class X-B-6 Certificate
|
|
Exhibit C
|
Form
of Reverse of all Certificates
|
|
Exhibit D-1
|
Loan
Group 1 Mortgage Loan Schedule
|
|
Exhibit D-2
|
Loan
Group 2 Mortgage Loan Schedule
|
|
Exhibit D-3
|
Loan
Group 3 Mortgage Loan Schedule
|
|
Exhibit D-4
|
Loan
Group 4 Mortgage Loan Schedule
|
|
Exhibit E
|
Request
for Release of Documents
|
|
Exhibit F
|
Form
of Certification of Establishment of Account
|
|
Exhibit G-1
|
Form
of Transferor’s Certificate
|
|
Exhibit G-2A
|
Form 1
of Transferee’s Certificate
|
|
Exhibit G-2B
|
Form 2
of Transferee’s Certificate
|
|
Exhibit H
|
Form
of Transferee Representation Letter for ERISA
|
|
Restricted
Certificates
|
|
|
Exhibit I
|
Form
of Affidavit Regarding Transfer of Residual Certificate
|
|
Exhibit J
|
List
of Recordation States
|
|
Exhibit K
|
Form
of Initial Certification
|
|
Exhibit L
|
Form
of Final Certification
|
|
Exhibit M
|
Form
of Xxxxxxxx-Xxxxx Certification
|
|
Exhibit N
|
Relevant
Servicing Criteria
|
|
Exhibit O
|
Additional
Form 10-D Disclosure
|
|
Exhibit P
|
Additional
Form 10-K Disclosure
|
v
|
Exhibit Q
|
Form
8-K Disclosure Information
|
|
Exhibit R
|
Form
of Back-up Certification
|
|
Exhibit S
|
Form
of Additional Disclosure Notification
|
|
Exhibit T
|
Form
of Transferor’s Certificate Regarding Transfer of Residual
Certificate
|
vi
THIS
POOLING AND SERVICING AGREEMENT, dated [_____] [__], 20[__], is hereby executed
by and among BANC OF AMERICA FUNDING CORPORATION, as depositor (together with
its permitted successors and assigns, the “Depositor”),
[__________], as master servicer (together with its permitted successors and
assigns, in such capacity, the “Master
Servicer”) and as securities administrator (together with its permitted
successors and assigns, in such capacity, the “Securities
Administrator”), and [__________], as trustee (together with its
permitted successors and assigns, the “Trustee”).
WITNESSETH THAT:
In
consideration of the mutual agreements herein contained, the Depositor, the
Master Servicer, the Securities Administrator and the Trustee agree as
follows:
PRELIMINARY
STATEMENT
The
Depositor intends to sell pass-through certificates (collectively, the “Certificates”),
to be issued hereunder in multiple Classes, which in the aggregate will evidence
the entire beneficial ownership interest in the Trust Estate created
hereunder. The Certificates will consist of twenty-four Classes of
Certificates, designated as the Class 1-A-1, Class 1-A-2, Class 2-A-R, Class
2-A-1, Class 2-A-2, Class 3-A-1, Class 3-A-2, Class 3-A-3, Class 3-A-4, Class
4-A-1, Class 4-A-2, Class 4-A-3, Class X-X-1, Class X-X-2, Class X-X-3, Class
X-X-4, Class X-X-5, Class X-X-6, Class X-B-1, Class X-B-2, Class X-B-3, Class
X-B-4, Class X-B-5 and Class X-B-6 Certificates. The descriptions of
the Lower-Tier REMIC, the Middle-Tier REMIC and the Upper-Tier REMIC that follow
are part of the Preliminary Statement. Any inconsistencies or
ambiguities in this Agreement or in the administration of this Agreement shall
be resolved pursuant to the terms of Section 11.01 hereof
in a manner that preserves the validity of such REMIC elections described
below.
1
Lower-Tier
REMIC
As
provided herein, the Securities Administrator will make an election to treat
the
segregated pool of assets consisting of the Mortgage Loans and certain other
related assets subject to this Agreement as a real estate mortgage investment
conduit (“REMIC”)
for federal income tax purposes, and such segregated pool of assets will be
designated as the “Lower-Tier
REMIC.” The Class LR Interest will represent the sole class of
“residual interests” in the Lower-Tier REMIC for purposes of the REMIC
Provisions. The following table irrevocably sets forth the
designation, the Uncertificated Lower-Tier REMIC Pass-Through Rate, the initial
Uncertificated Balance, and solely for purposes of satisfying Treasury
Regulations Section 1.860G-1(a)(4)(iii), the “latest possible maturity date” for
each of the Uncertificated Lower-Tier Regular Interests. None of the
Uncertificated Lower-Tier Interests will be certificated.
|
Designation
|
Initial
Uncertificated Balance
|
Uncertificated
Lower-Tier
REMIC Pass-Through Rate
|
Latest
Possible Maturity Date(1)
|
|
|
Class
1-L
|
$[__________]
|
Variable(2)
|
[__________]
|
|
|
Class
1-LS
|
$[__________]
|
Variable(2)
|
[__________]
|
|
|
Class
2-L
|
$[__________]
|
Variable(2)
|
[__________]
|
|
|
Class
2-LS
|
$[__________]
|
Variable(2)
|
[__________]
|
|
|
Class
3-L
|
$[__________]
|
Variable(2)
|
[__________]
|
|
|
Class
3-LS
|
$[__________]
|
Variable(2)
|
[__________]
|
|
|
Class
4-L
|
$[__________]
|
Variable(2)
|
[__________]
|
|
|
Class
4-LS
|
$[__________]
|
Variable(2)
|
[__________]
|
|
|
(1)
|
Solely
for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in the month following the maturity date for
the
Mortgage Loan with the latest maturity date has been designated as
the
“latest possible maturity date” for each Uncertificated Lower-Tier Regular
Interest.
|
|
(2)
|
Calculated
in accordance with the definition of “Uncertificated Lower-Tier REMIC
Pass-Through Rate” herein.
|
2
Middle-Tier
REMIC
As
provided herein, the Securities Administrator will make an election to treat
the
segregated pool of assets consisting of the Uncertificated Lower-Tier Regular
Interests as a REMIC for federal income tax purposes, and such segregated pool
of assets will be designated as the “Middle-Tier
REMIC.” The Class MR Interest will represent the sole
class of “residual interests” in the Middle-Tier REMIC for purposes of the
REMIC Provisions. The following table irrevocably sets forth the
designation, the Uncertificated Middle-Tier REMIC Pass-Through Rate, the initial
Uncertificated Balance, and solely for purposes of satisfying Treasury
Regulations Section 1.860G-1(a)(4)(iii), the “latest possible maturity
date” for each of the Uncertificated Middle-Tier Regular
Interests. None of the Uncertificated Middle-Tier Interests will be
certificated.
|
Designation
|
Initial
Uncertificated Balance
|
Uncertificated
Middle-Tier
REMIC Pass-Through Rate
|
Latest
Possible Maturity Date(1)
|
|
Class
MRI-1A1
|
$[__________]
|
Variable(2)
|
[__________]
|
|
Class
MRI-2AR
|
$[__________]
|
Variable(2)
|
[__________]
|
|
Class
MRI-2A1
|
$[__________]
|
Variable(2)
|
[__________]
|
|
Class
MRI-3A1
|
$[__________]
|
Variable(2)
|
[__________]
|
|
Class
MRI-4A1
|
$[__________]
|
Variable(2)
|
[__________]
|
|
Class
MRI-JB1
|
$[__________]
|
Variable(2)
|
[__________]
|
|
Class
MRI-JB2
|
$[__________]
|
Variable(2)
|
[__________]
|
|
Class
MRI-JB3
|
$[__________]
|
Variable(2)
|
[__________]
|
|
Class
MRI-JB4
|
$[__________]
|
Variable(2)
|
[__________]
|
|
Class
MRI-JB5
|
$[__________]
|
Variable(2)
|
[__________]
|
|
Class
MRI-JB6
|
$[__________]
|
Variable(2)
|
[__________]
|
|
Class
MRI-XB1
|
$[__________]
|
Variable(2)
|
[__________]
|
|
Class
MRI-XB2
|
$[__________]
|
Variable(2)
|
[__________]
|
|
Class
MRI-XB3
|
$[__________]
|
Variable(2)
|
[__________]
|
|
Class
MRI-XB4
|
$[__________]
|
Variable(2)
|
[__________]
|
|
Class
MRI-XB5
|
$[__________]
|
Variable(2)
|
[__________]
|
|
Class
MRI-XB6
|
$[__________]
|
Variable(2)
|
[__________]
|
|
(1)
|
Solely
for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in the month following the maturity date for
the
Mortgage Loan with the latest maturity date has been designated as
the
“latest possible maturity date” for each Uncertificated Middle-Tier
Regular Interest.
|
|
(2)
|
Calculated
in accordance with the definition of “Uncertificated Middle-Tier REMIC
Pass-Through Rate” herein.
|
The
foregoing Lower-Tier REMIC and Middle-Tier REMIC structure is intended to cause
all the cash from the Mortgage Loans to flow through the Upper-Tier REMIC as
cash flow on a Upper-Tier Regular Interest, without creating any shortfall,
actual or potential (other than for losses), to any Upper-Tier Regular
Interest. To the extent that the structure is believed to diverge
from such intention, the party identifying such ambiguity or drafting error
shall notify the other parties hereto, and the parties hereto shall attempt
to
resolve such ambiguity or drafting error in accordance with Section 11.01
hereto.
3
Upper-Tier
REMIC
As
provided herein, the Securities Administrator will make an election to treat
the
segregated pool of assets consisting of the Uncertificated Middle-Tier Regular
Interests as a REMIC for federal income tax purposes, and such segregated pool
of assets will be designated as the “Upper-Tier
REMIC.” The Class UR Interest will represent the sole class of
“residual interests” in the Upper-Tier REMIC for purposes of the REMIC
Provisions. The following table irrevocably sets forth (or describes)
the designation, the Interest Rate, and Initial Uncertificated Balance or
Notional Amount for each Upper-Tier Regular Interest comprising the “regular
interests” in the Upper-Tier REMIC for purposes of the REMIC Provisions and
solely for purposes of Satisfying Treasury Regulations
Section 1.860G-1(a)(4)(iii), the “latest possible maturity date” for each
class of Upper-Tier Regular Interests.
|
Designation
|
Initial
Uncertificated Balance or Notional Amount
|
Interest
Rate
|
Latest
Possible Maturity Date(1)
|
|
1-A-1
|
$[__________]
|
(2)
|
[__________]
|
|
1-A-2
|
$[__________]
|
(2)
|
[__________]
|
|
2-A-R
|
$[__________]
|
(2)
|
[__________]
|
|
2-A-1
|
$[__________]
|
(2)
|
[__________]
|
|
2-A-2
|
$[__________]
|
(2)
|
[__________]
|
|
3-A-1
|
$[__________]
|
(2)
|
[__________]
|
|
3-A-2
|
$[__________]
|
(2)
|
[__________]
|
|
3-A-3
|
$[__________]
|
(2)
|
[__________]
|
|
3-A-4
|
$[__________](3)
|
(2)
|
[__________]
|
|
4-A-1
|
$[__________]
|
(2)
|
[__________]
|
|
4-A-2
|
$[__________]
|
(2)
|
[__________]
|
|
4-A-3
|
$[__________]
|
(2)
|
[__________]
|
|
X-X-1
|
$[__________]
|
(2)
|
[__________]
|
|
X-X-2
|
$[__________]
|
(2)
|
[__________]
|
|
X-X-3
|
$[__________]
|
(2)
|
[__________]
|
|
X-X-4
|
$[__________]
|
(2)
|
[__________]
|
|
X-X-5
|
$[__________]
|
(2)
|
[__________]
|
|
X-X-6
|
$[__________]
|
(2)
|
[__________]
|
|
X-B-1
|
$[__________]
|
(2)
|
[__________]
|
|
X-B-2
|
$[__________]
|
(2)
|
[__________]
|
|
X-B-3
|
$[__________]
|
(2)
|
[__________]
|
|
X-B-4
|
$[__________]
|
(2)
|
[__________]
|
|
X-B-5
|
$[__________]
|
(2)
|
[__________]
|
|
X-B-6
|
$[__________]
|
(2)
|
[__________]
|
|
(1)
|
Solely
for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in the month following the maturity date for
the
Mortgage Loan with the latest maturity date has been designated as
the
“latest possible maturity date” for each Upper-Tier Regular Interest.
|
|
(2)
|
Interest
will accrue on these Upper-Tier Regular Interests at a rate equal
to the
Pass-Through Rate of the Corresponding Class of Certificates.
|
4
|
(3)
|
Calculated
in accordance with the definition of “Notional Amount” herein.
|
5
SUMMARY
OF CERTIFICATES
The
following table sets forth characteristics of the Certificates, together with
the minimum denominations and integral multiples in excess thereof in which
the
Classes of Certificates shall be issuable:
|
Classes
|
Initial
Class Certificate Balance or Initial Notional Amount
|
Pass-Through
Rate
|
Minimum
Denomination
|
Integral
Multiples
in
Excess
of
Minimum
|
|
Class
1-A-1
|
$[__________]
|
(1)
|
$[1,000]
|
$[1]
|
|
Class
1-A-2
|
$[__________]
|
(1)
|
$[1,000]
|
$[1]
|
|
Class
2-A-R
|
$[__________]
|
(2)
|
$[100]
|
N/A
|
|
Class
2-A-1
|
$[__________]
|
(2)
|
$[1,000]
|
$[1]
|
|
Class
2-A-2
|
$[__________]
|
(2)
|
$[1,000]
|
$[1]
|
|
Class
3-A-1
|
$[__________]
|
(3)
|
$[1,000]
|
$[1]
|
|
Class
3-A-2
|
$[__________]
|
(3)
|
$[1,000]
|
$[1]
|
|
Class
3-A-3
|
$[__________]
|
(3)
|
$[1,000]
|
$[1]
|
|
Class
3-A-4
|
$[__________]
|
(4)
|
$[1,000,000]
|
$[1]
|
|
Class
4-A-1
|
$[__________]
|
(5)
|
$[1,000]
|
$[1]
|
|
Class
4-A-2
|
$[__________]
|
(5)
|
$[1,000]
|
$[1]
|
|
Class
4-A-3
|
$[__________]
|
(5)
|
$[1,000]
|
$[1]
|
|
Class
X-X-1
|
$[__________]
|
(6)
|
$[25,000]
|
$[1]
|
|
Class
X-X-2
|
$[__________]
|
(6)
|
$[25,000]
|
$[1]
|
|
Class
X-X-3
|
$[__________]
|
(6)
|
$[25,000]
|
$[1]
|
|
Class
X-X-4
|
$[__________]
|
(6)
|
$[25,000]
|
$[1]
|
|
Class
X-X-5
|
$[__________]
|
(6)
|
$[25,000]
|
$[1]
|
|
Class
X-X-6
|
$[__________]
|
(6)
|
$[25,000]
|
$[1]
|
|
Class
X-B-1
|
$[__________]
|
(7)
|
$[25,000]
|
$[1]
|
|
Class
X-B-2
|
$[__________]
|
(7)
|
$[25,000]
|
$[1]
|
|
Class
X-B-3
|
$[__________]
|
(7)
|
$[25,000]
|
$[1]
|
|
Class
X-B-4
|
$[__________]
|
(7)
|
$[25,000]
|
$[1]
|
|
Class
X-B-5
|
$[__________]
|
(7)
|
$[25,000]
|
$[1]
|
|
Class
X-B-6
|
$[__________]
|
(7)
|
$[25,000]
|
$[1]
|
|
(1)
|
Interest
will accrue on these Certificates at a per annum rate equal to the
Net WAC
of the Group 1 Mortgage Loans.
|
|
(2)
|
Interest
will accrue on these Certificates at a per annum rate equal to the
Net WAC
of the Group 2 Mortgage Loans.
|
|
(3)
|
For
each Distribution Date occurring prior to and including the Distribution
Date in [_____], interest will accrue on these Certificates at a
per annum
rate equal to Net WAC of the Group 3 Mortgage Loans less [_____]%.
For
each Distribution Date occurring on and after the Distribution Date
in
[_____], interest will accrue on these Certificates at a per annum
rate
equal to the Net WAC of the Group 3 Mortgage Loans.
|
6
|
(4)
|
For
each Distribution Date occurring prior to and including the Distribution
Date in [_____], interest will accrue on these Certificates at a
per annum
rate equal to [_____]%. For each Distribution Date occurring on and
after
the Distribution Date in [_____], no interest will accrue on these
Certificates.
|
|
(5)
|
Interest
will accrue on these Certificates at a per annum rate equal to the
Net WAC
of the Group 4 Mortgage Loans.
|
|
(6)
|
Interest
will accrue on these Certificates at a per annum rate equal to the
weighted average (based on the Group Subordinate Amount for each
Loan
Group in Loan Group J) of the Net WAC of the Group J Mortgage Loans.
|
|
(7)
|
Interest
will accrue on these Certificates at a per annum rate equal to the
weighted average (based on the Group Subordinate Amount for each
Loan
Group in Loan Group X) of the Net WAC of the Group X Mortgage Loans.
|
7
ARTICLE
I
DEFINITIONS
Section
1.01 Defined
Terms.
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the meanings specified in this
Article:
10-K
Filing Deadline: As defined in Section 3.22(c).
1933
Act: The Securities Act of 1933, as amended.
Accrued
Certificate Interest: For any Distribution Date and each
Class, one month’s interest accrued during the related Interest Accrual Period
at the applicable Pass-Through Rate on the applicable Class Certificate
Balance or Notional Amount.
Additional
Disclosure Notification: The form of notification to be
included with any Additional Form 10-D Disclosure, Additional Form 10-K
Disclosure or Form 8-K Disclosure Information which is attached hereto as Exhibit S.
Additional
Form 10-D Disclosure: As defined in Section 3.22(b).
Additional
Form 10-K Disclosure: As defined in Section 3.22(c).
Additional
Servicer: A Subcontractor engaged by the Master Servicer or
the Securities Administrator that is a “servicer” within the meaning of Item
1101 of Regulation AB and meets any of the criteria in Item 1108(a)(2)(i)
through (iii) of Regulation AB.
Adjusted
Pool Amount: With respect to any Distribution Date and each
Loan Group, the Cut-off Date Pool Principal Balance 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 related
Certificates on such Distribution Date and all prior Distribution Dates and
(ii) the principal portion of all Realized Losses (other than Debt Service
Reductions) incurred on 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.
Appraised
Value: With respect to any Mortgaged Property, either
(i) the lesser of (a) the appraised value determined in an appraisal
obtained by the originator generally no more than four months prior to
origination (or, with respect to newly constructed properties, no more than
twelve months prior to origination) of such Mortgage Loan or, in certain cases,
an automated
8
valuation
model (if applicable) or tax assessed value and (b) the sales price for
such property, except that, in the case of Mortgage Loans the proceeds of which
were used to refinance an existing mortgage loan, the Appraised Value of the
related Mortgaged Property is the appraised value thereof determined in an
appraisal obtained at the time of refinancing or, in certain cases, an automated
valuation model (if applicable) or tax assessed value, or (ii) the
appraised value determined in an appraisal made at the request of a Mortgagor
subsequent to origination in order to eliminate the Mortgagor’s obligation to
keep a Primary Mortgage Insurance Policy in force.
Assessment
of Compliance: As defined in Section 3.21(a).
Assignment
of Mortgage: An individual assignment of the Mortgage, notice
of transfer or equivalent instrument in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located
to
give record notice of the sale of the Mortgage.
Attestation
Report: As defined in Section 3.21(b).
Authenticating
Agents: As defined in Section 9.10.
Back-up
Certification: As defined in Section 3.22(e).
BAFC: Banc
of America Funding Corporation.
BANA: Bank
of America, National Association, a national banking association, or its
successor in interest.
Book-Entry
Certificate: All Classes of Certificates other than the
Physical Certificates.
Business
Day: Any day other than (i) a Saturday or a Sunday or
(ii) a day on which banking institutions in the State of North Carolina,
the State of New York, the states in which the servicing offices of any Servicer
are located, the state or states in which the master servicing offices of the
Master Servicer are located or the state or states in which the Corporate Trust
Offices of the Trustee and the Securities Administrator are located are required
or authorized by law or executive order to be closed.
Buy-Down
Account: The separate Eligible Account or Accounts created and
maintained by a Servicer as set forth in Section 3.08.
Buy-Down
Agreement: An agreement governing the application of Buy-Down
Funds with respect to a Buy-Down Mortgage Loan.
Buy-Down
Funds: Money advanced by a builder, seller or other interested
party to reduce a Mortgagor’s monthly payment during the initial years of a
Buy-Down Mortgage Loan.
Buy-Down
Mortgage Loan: Any Mortgage Loan in respect of which, pursuant
to a Buy-Down Agreement, the monthly interest payments made by the related
Mortgagor will be less than the scheduled monthly interest payments on such
Mortgage Loan, with the resulting difference in interest payments being provided
from related Buy-Down Funds.
9
Calculated
Principal Distribution: As defined in Section 5.04(b)(iii).
Capitalization
Reimbursement Amount: As of any date, the amount of Advances that have
been added to the unpaid principal balance of a Mortgage Loan in connection
with
a Servicer Modification.
Certificate: Any
of the Banc of America Funding Corporation Mortgage Pass-Through Certificates,
Series 20[__]-[_] that are issued pursuant to this Agreement.
Certificate
Account: The Eligible Account created and maintained by the
Securities Administrator pursuant to Section 3.09(b) in
the name of the Securities Administrator, on behalf of the Trustee, for the
benefit of the Certificateholders and designated “[__________], as Securities
Administrator for [__________], as Trustee, in trust for registered holders
of
Banc of America Funding Corporation Mortgage Pass-Through Certificates,
Series 20[__]-[_].” The Certificate Account shall be deemed to
consist of seven sub-accounts; one for each of the Loan Groups (the “Loan
Group 1 Sub-Account,” “Loan
Group 2 Sub-Account,” “Loan
Group 3 Sub-Account” and “Loan
Group 4 Sub-Account”), and one for each of the Lower-Tier Certificate
Sub-Account, the Middle-Tier Certificate Sub-Account and the Upper-Tier
Certificate Sub-Account. Funds in the Certificate Account shall be
held in trust for the Holders of the Certificates for the uses and purposes
set
forth in this Agreement.
Certificate
Balance: With respect to any Certificate at any date, the
maximum dollar amount of principal to which the Holder thereof is then entitled
hereunder, such amount being equal to the product of the Percentage Interest
of
such Certificate and the Class Certificate Balance of the Class of Certificates
of which such Certificate is a part.
Certificate
Custodian: Initially, [__________]; thereafter any other
Certificate Custodian acceptable to the Depository and selected by the
Securities Administrator.
Certificate
Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of a Book-Entry Certificate. With respect
to any Definitive Certificate, the Certificateholder of such
Certificate.
Certificate
Register: The register maintained pursuant to Section 6.02.
Certificate
Registrar: The registrar appointed pursuant to Section 6.02.
Certificateholder: The
Person in whose name a Certificate is registered in the Certificate Register,
except that, solely for the purpose of giving any consent pursuant to this
Agreement, any Certificate registered in the name of the Depositor, the Master
Servicer or any affiliate thereof shall be deemed not to be outstanding and
the
Percentage Interest and Voting Rights evidenced thereby shall not be taken
into
account in determining whether the requisite amount of Percentage Interests
or
Voting Rights, as the case may be, necessary to effect any such consent has
been
obtained, unless such entity is the registered owner of the entire Class of
Certificates, provided
that neither the Securities Administrator nor the Trustee shall be responsible
for knowing that any Certificate is registered in the name of an affiliate
of
the Depositor or the Master Servicer unless one of its Responsible Officers
has
actual knowledge thereof.
10
Certification
Parties: As defined in Section
3.22(e).
Certifying
Person: As defined in Section
3.22(e).
Class: As
to the Certificates, Class 1-A-1, Class 1-A-2, Class 2-A-R, Class 2-A-1, Class
2-A-2, Class 3-A-1, Class 3-A-2, Class 3-A-3, Class 3-A-4, Class 4-A-1, Class
4-A-2, Class 4-A-3, Class X-X-1, Class X-X-2, Class X-X-3, Class X-X-4, Class
X-X-5, Class X-X-6, Class X-B-1, Class X-B-2, Class X-B-3, Class X-B-4, Class
X-B-5 and Class X-B-6 Certificates, as the case may be.
Class 1-A-1
Loss Amount: With respect to any Distribution Date after the
Senior Credit Support Depletion Date for Group J, the amount, if any, by which
the Class Certificate Balance of the Class 1-A-1 Certificates would be
reduced as a result of the allocation of any reduction pursuant to Section
5.04(b) to such Class, without regard to the operation of Section
5.04(e).
Class 1-A-2
Loss Allocation Amount: With respect to any Distribution Date
after the Senior Credit Support Depletion Date for Group J, the lesser of
(a) the Class Certificate Balance of the Class 1-A-2 Certificates
with respect to such Distribution Date prior to any reduction for the
Class 1-A-2 Loss Allocation Amount and (b) the Class 1-A-1 Loss
Amount with respect to such Distribution Date.
Class 2-A-1
Loss Amount: With respect to any Distribution Date after the
Senior Credit Support Depletion Date for Group J, the amount, if any, by which
the Class Certificate Balance of the Class 2-A-1 Certificates would be
reduced as a result of the allocation of any reduction pursuant to Section
5.04(b) to such Class, without regard to the operation of Section
5.04(e).
Class 2-A-2
Loss Allocation Amount: With respect to any Distribution Date
after the Senior Credit Support Depletion Date for Group J, the lesser of
(a) the Class Certificate Balance of the Class 2-A-2 Certificates
with respect to such Distribution Date prior to any reduction for the
Class 2-A-2 Loss Allocation Amount and (b) the Class 2-A-1 Loss
Amount with respect to such Distribution Date.
Class 3-A-1
Loss Amount: With respect to any Distribution Date after the
Senior Credit Support Depletion Date for Group X, the amount, if any, by which
the Class Certificate Balance of the Class 3-A-1 Certificates would be
reduced as a result of the allocation of any reduction pursuant to Section
5.04(b) to such Class, without regard to the operation of Section
5.04(e).
Class 3-A-2
Loss Amount: With respect to any Distribution Date after the
Senior Credit Support Depletion Date for Group X, the amount, if any, by which
the Class Certificate Balance of the Class 3-A-2 Certificates would be
reduced as a result of the allocation of any reduction pursuant to Section 5.04(b) to
such Class, without regard to the operation of Section
5.04(e).
Class 3-A-2
Loss Allocation Amount: With respect to any Distribution Date
after the Senior Credit Support Depletion Date for Group X and after the Class
Certificate Balance of the Class 3-A-3 Certificates has been reduced to zero,
the lesser of (a) the Class Certificate Balance of the
Class 3-A-2 Certificates with respect to such Distribution Date prior to
any reduction for
11
the
Class 3-A-2 Loss Allocation Amount and (b) the Class 3-A-1 Loss
Amount with respect to such Distribution Date.
Class 3-A-3
Loss Allocation Amount: With respect to any Distribution Date
after the Senior Credit Support Depletion Date for Group X, the lesser of
(a) the Class Certificate Balance of the Class 3-A-3 Certificates
with respect to such Distribution Date prior to any reduction for the
Class 3-A-3 Loss Allocation Amount and (b) the sum of the
Class 3-A-1 Loss Amount and the Class 3-A-2 Loss Amount with respect to
such Distribution Date.
Class
3-A-4 Notional Amount: With respect to each Distribution Date
and the Class 3-A-4 Certificates, the sum of the Class Certificate Balances
of
Class 3-A-1, Class 3-A-2 and Class 3-A-3 Certificates.
Class 4-A-1
Loss Amount: With respect to any Distribution Date after the
Senior Credit Support Depletion Date for Group X, the amount, if any, by which
the Class Certificate Balance of the Class 4-A-1 Certificates would be
reduced as a result of the allocation of any reduction pursuant to Section
5.04(b) to such Class, without regard to the operation of Section
5.04(e).
Class 4-A-2
Loss Amount: With respect to any Distribution Date after the
Senior Credit Support Depletion Date for Group X, the amount, if any, by which
the Class Certificate Balance of the Class 4-A-2 Certificates would be
reduced as a result of the allocation of any reduction pursuant to Section 5.04(b) to
such Class, without regard to the operation of Section
5.04(e).
Class 4-A-2
Loss Allocation Amount: With respect to any Distribution Date
after the Senior Credit Support Depletion Date for Group X and after the Class
Certificate Balance of the Class 4-A-3 Certificates has been reduced to zero,
the lesser of (a) the Class Certificate Balance of the
Class 4-A-2 Certificates with respect to such Distribution Date prior to
any reduction for the Class 4-A-2 Loss Allocation Amount and (b) the
Class 4-A-1 Loss Amount with respect to such Distribution
Date.
Class 4-A-3
Loss Allocation Amount: With respect to any Distribution Date
after the Senior Credit Support Depletion Date for Group X, the lesser of
(a) the Class Certificate Balance of the Class 4-A-3 Certificates
with respect to such Distribution Date prior to any reduction for the
Class 4-A-3 Loss Allocation Amount and (b) the sum of the
Class 4-A-1 Loss Amount and the Class 4-A-2 Loss Amount with respect to
such Distribution Date.
Class Certificate
Balance: With respect to any Class of Certificates and
any date of determination, and subject to Section 5.04(b),
an amount equal to (a) the Initial Class Certificate Balance of such Class
minus (A) the sum of (i) all distributions of principal made with
respect thereto, (ii) all reductions in Class Certificate Balance
previously allocated thereto pursuant to Section 5.04(b)
in the case
of the Class 1-A-2, Class 2-A-2, Class 3-A-2, Class 3-A-3, Class
4-A-2 and Class 4-A-3 Certificates, any reduction allocated thereto pursuant
to
Section 5.04(e)
plus (B) the sum of (i) all increases in Class Certificate
Balance previously allocated thereto pursuant to Section 5.04(b) in
the case of the Class 1-A-2, Class 2-A-2, Class 3-A-2, Class 3-A-3, Class 4-A-2
and Class 4-A-3 Certificates, any increases allocated thereto pursuant to Section 5.04(e). The
Class 3-A-4 Certificates are Interest Only Certificates and have no Class
Certificate Balance.
12
Class Interest
Shortfall: For any Distribution Date and each Class of
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 IO
Distribution Amount: As defined in Section 5.12 hereof.
Class Unpaid
Interest Shortfall: As to any Distribution Date and each
Class of Certificates, the amount by which the aggregate
Class Interest Shortfalls for such Class on prior Distribution Dates
exceeds the amount of interest actually distributed on such Class on such
prior Distribution Dates pursuant to clause (ii) of the definition of
“Interest Distribution Amount.”
Class X-B
Certificates: The Class X-B-1, Class X-B-2,
Class X-B-3, Class X-B-4, Class X-B-5 and Class X-B-6
Certificates.
Closing
Date: [_____] [__], 20[__].
Code: The
Internal Revenue Code of 1986, as amended.
Collection
Period: With respect to any Distribution Date, the period from
the second day of the calendar month preceding the month in which such
Distribution Date occurs through the first day of the month in which such
Distribution Date occurs.
Commission: The
U.S. Securities and Exchange Commission.
Compensating
Interest: With respect to any Distribution Date and Servicer,
an amount equal to the lesser of (a) the aggregate Servicing Fee payable to
such
Servicer for the Mortgage Loans serviced by such Servicer as of the Due Date
of
the month preceding the month of such Distribution Date and (b) the
aggregate of the Prepayment Interest Shortfalls on the Mortgage Loans serviced
by such Servicer resulting from Principal Prepayments on such Mortgage Loans
during the related Prepayment Period.
Compliance
Statement: As defined in Section 3.20.
Cooperative: A
private, cooperative housing corporation which owns or leases land and all
or
part of a building or buildings, including apartments, spaces used for
commercial purposes and common areas therein and whose board of directors
authorizes, among other things, the sale of Cooperative Stock.
Cooperative
Apartment: A dwelling unit in a multi-dwelling building owned
or leased by a Cooperative, which unit the Mortgagor has an exclusive right
to
occupy pursuant to the terms of a proprietary lease or occupancy
agreement.
Cooperative
Lease: With respect to a Cooperative Loan, the proprietary
lease or occupancy agreement with respect to the Cooperative Apartment occupied
by the Mortgagor and relating to the related Cooperative Stock, which lease
or
agreement confers an exclusive right to the holder of such Cooperative Stock
to
occupy such apartment.
13
Cooperative
Loans: Any of the Mortgage Loans made in respect of a
Cooperative Apartment, evidenced by a Mortgage Note and secured by (i) a
Security Agreement, (ii) the related Cooperative Stock Certificate,
(iii) an assignment or mortgage of the Cooperative Lease,
(iv) financing statements and (v) a stock power (or other similar
instrument), and ancillary thereto, a Recognition Agreement, each of which
was
transferred and assigned to the Trust pursuant to Section 2.01.
Cooperative
Stock: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership
instrument in the related Cooperative.
Cooperative
Stock Certificate: With respect to a Cooperative Loan, the
stock certificate or other instrument evidencing the related Cooperative
Stock.
Corporate
Trust Office: With respect to the Trustee, the office of the
Trustee, which office at the date of the execution of this instrument is located
at [__________], Attention: [__________], or at such other address as
the Trustee may designate from time to time by notice to the Certificateholders,
the Depositor, the Securities Administrator and the Master
Servicer. With respect to the Securities Administrator, the principal
corporate trust office of the Securities Administrator at which at any
particular time its corporate trust business with respect to this Agreement
is
conducted, which office at the date of the execution of this instrument is
located at [__________], Attention: [__________], or at such other
address as the Securities Administrator may designate from time to time by
notice to the Certificateholders, the Depositor, the Trustee and the Master
Servicer.
Corresponding
Class or Classes: The Class of interests in one REMIC created
under this Agreement that corresponds to the Class of interests in another
REMIC
or to a Class or Classes of Certificates in the manner set out
below:
|
Uncertificated
Middle-Tier Regular Interest
|
Corresponding
Upper-Tier Regular Interest
|
Corresponding
Class or Classes of Certificates
|
|
Class
MRI-1A1 Interest
|
Class
1-A-1 and Class 1-A-2 Interests
|
Class
1-A-1 and Class 1-A-2 Certificates
|
|
Class
MRI-2AR Interest
|
N/A
|
Class
2-A-R Certificate
|
|
Class
MRI-2A1 Interest
|
Class
2-A-1 and Class 2-A-2 Interests
|
Class
2-A-1 and Class 2-A-2 Certificates
|
|
Class
MRI-3A1 Interest
|
Class
3-A-1, Class 3-A-2, Class 3-A-3 and Class 3-A-4 Interests
|
Class
3-A-1, Class 3-A-2, Class 3-A-3 and Class 3-A-4
Certificates
|
|
Class
MRI-4A1 Interest
|
Class
4-A-1, Class 4-A-2 and Class 4-A-3 Interests
|
Class
4-A-1, Class 4-A-2 and Class 4-A-3 Certificates
|
|
Class
MRI-JB1 Interest
|
Class X-X-1
Interest
|
Class X-X-1
Certificates
|
|
Class
MRI-JB2 Interest
|
Class X-X-2
Interest
|
Class X-X-2
Certificates
|
|
Class
MRI-JB3 Interest
|
Class X-X-3
Interest
|
Class X-X-3
Certificates
|
|
Class
MRI-JB4 Interest
|
Class X-X-4
Interest
|
Class X-X-4
Certificates
|
|
Class
MRI-JB5 Interest
|
Class
X-X-5 Interest
|
Class
X-X-5 Certificates
|
|
Class
MRI-JB6 Interest
|
Class
X-X-6 Interest
|
Class
X-X-6 Certificates
|
14
|
Uncertificated
Middle-Tier Regular Interest
|
Corresponding
Upper-Tier Regular Interest
|
Corresponding
Class or Classes of Certificates
|
|
Class
MRI-XB1 Interest
|
Class X-B-1
Interest
|
Class X-B-1
Certificates
|
|
Class
MRI-XB2 Interest
|
Class X-B-2
Interest
|
Class X-B-2
Certificates
|
|
Class
MRI-XB3 Interest
|
Class X-B-3
Interest
|
Class X-B-3
Certificates
|
|
Class
MRI-XB4 Interest
|
Class X-B-4
Interest
|
Class X-B-4
Certificates
|
|
Class
MRI-XB5 Interest
|
Class
X-B-5 Interest
|
Class
X-B-5 Certificates
|
|
Class
MRI-XB6 Interest
|
Class
X-B-6 Interest
|
Class
X-B-6 Certificates
|
Custodian: Initially,
the Trustee and thereafter any custodian appointed by the Trustee pursuant
to
Section 9.12. A
Custodian may (but need not) be the Trustee or any Person directly or indirectly
controlling or controlled by or under common control of either of
them. None of the Master Servicer, any Servicer or the Depositor, or
any Person directly or indirectly controlling or controlled by or under common
control with any such Person may be appointed Custodian.
Customary
Servicing Procedures: With respect to (i) any Servicer,
procedures (including collection procedures) that a Servicer customarily employs
and exercises in servicing and administering mortgage loans for its own account
and which are in accordance with accepted mortgage servicing practices of
prudent lending institutions servicing mortgage loans of the same type as the
Mortgage Loans in the jurisdictions in which the related Mortgaged Properties
are located and (ii) the Master Servicer, those master servicing procedures
that constitute customary and usual standards of practice of prudent mortgage
loan master servicers.
Cut-off
Date: [_____]. [__], 20[__].
Cut-off
Date Pool Principal Balance: For each Loan Group, the
aggregate of the Stated Principal Balances of the Mortgage Loans in such Loan
Group as of the Cut-off Date, which is $[__________] for Loan Group 1,
$[__________] for Loan Group 2, $[__________] for Loan Group 3 and $[__________]
for Loan Group 4.
Debt
Service Reduction: As to any Mortgage Loan and any
Determination Date, the excess of (i) the Monthly Payment due on the
related Due Date under the terms of such Mortgage Loan over (ii) the amount
of the monthly payment of principal and/or interest required to be paid with
respect to such Due Date by the Mortgagor as established by a court of competent
jurisdiction (pursuant to an order which has become final and nonappealable)
as
a result of a proceeding initiated by or against the related Mortgagor under
the
Bankruptcy Code, as amended from time to time (11 U.S.C.); provided that no such excess
shall be considered a Debt Service Reduction so long as (a) the Servicer of
such Mortgage Loan is pursuing an appeal of the court order giving rise to
any
such modification and (b)(1) such Mortgage Loan is not in default with
respect to payment due thereunder in accordance with the terms of such Mortgage
Loan as in effect on the Cut-off Date or (2) Monthly Payments are being
advanced by the applicable Servicer, the Master Servicer or the Trustee, as
applicable, in accordance with the terms of such Mortgage Loan as in effect
on
the Cut-off Date.
15
Defective
Mortgage Loan: Any Mortgage Loan which is required to be
cured, repurchased or substituted for pursuant to Sections 2.02 or
2.04.
Deficient
Valuation: As to any Mortgage Loan and any Determination Date,
the excess of (i) the then outstanding indebtedness under such Mortgage
Loan over (ii) the secured valuation thereof established by a court of
competent jurisdiction (pursuant to an order which has become final and
nonappealable) as a result of a proceeding initiated by or against the related
Mortgagor under the Bankruptcy Code, as amended from time to time
(11 U.S.C.), pursuant to which such Mortgagor retained such Mortgaged
Property; provided that
no such excess shall be considered a Deficient Valuation so long as (a) the
applicable Servicer is pursuing an appeal of the court order giving rise to
any
such modification and (b)(1) such Mortgage Loan is not in default with
respect to payments due thereunder in accordance with the terms of such Mortgage
Loan as in effect on the Cut-off Date or (2) Monthly Payments are being
advanced by the applicable Servicer, the Master Servicer or the Trustee, as
applicable, in accordance with the terms of such Mortgage Loan as in effect
on
the Cut-off Date.
Definitive
Certificates: As defined in Section 6.02(c)(iii).
Denomination: The
amount, if any, specified on the face of each Certificate (other than an
Interest Only Certificate) representing the principal portion of the related
Initial Class Certificate Balance evidenced by such Certificate. As
to any Interest Only Certificate, the amount specified on the face of each
such
Certificate representing the portion of the Maximum Initial Notional Amount
evidenced by such Certificate.
Depositor: Banc
of America Funding Corporation, a Delaware corporation, or its successor in
interest, as depositor of the Trust Estate.
Depository: The
Depository Trust Company, the nominee of which is Cede & Co., as the
registered Holder of the Book-Entry Certificates or any successor thereto
appointed in accordance with this Agreement. The Depository shall at
all times be a “clearing corporation” as defined in Section 8-102(3) of the
Uniform Commercial Code of the State of New York.
Depository
Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the
Depository.
Determination
Date: With respect to any Distribution Date and for each
Servicer, as defined in the applicable Servicing Agreement.
Distribution
Date: The [__]th day
of each month beginning in [month] [year] (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.
XXXXX: The
Commission’s Electronic Data Gathering and Retrieval System.
16
Eligible
Account: Any of (i) an account or accounts maintained
with a federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the debt obligations of such holding company) have the highest
short-term ratings of each Rating Agency at the time any amounts are held on
deposit therein; following a downgrade, withdrawal, or suspension of such
institution’s rating, each account should promptly (and in any case within not
more than 30 calendar days) be moved to a qualifying institution or to one
or
more segregated trust accounts in the trust department of such institution,
if
permitted, or (ii) a trust account or accounts maintained with the trust
department of a federal or state chartered depository institution or trust
company (including the Trustee, the Master Servicer and the Securities
Administrator), acting in its fiduciary capacity or (iii) any other account
acceptable to each Rating Agency. Eligible Accounts may bear interest
and may include, if otherwise qualified under this definition, accounts
maintained with the Trustee, the Master Servicer or the Securities
Administrator.
ERISA: The
Employee Retirement Income Security Act of 1974, as amended.
ERISA
Restricted Certificates: Any of the Class 2-A-R, Class
X-X-4, Class X-X-5, Class X-X-6 Class X-B-4, Class X-B-5 and Class X-B-6
Certificates and any Certificate that no longer meets the applicable rating
requirements of an Underwriter’s Exemption.
Escrow
Account: As defined in Section 3.08.
Escrow
Payments: The amounts constituting taxes, assessments, Primary
Mortgage Insurance Policy premiums, fire and hazard insurance premiums and
other
payments as may be required to be escrowed by the Mortgagor with the mortgagee
pursuant to the terms of any Mortgage Note or Mortgage.
Events
of Default: As defined in Section 8.01.
Excess
Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which 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
applicable Servicer as Nonrecoverable Advance(s) with respect to such Mortgage
Loan pursuant to Section 3.11(a)(iv),
exceeds (i) the unpaid principal balance of such Liquidated Mortgage Loan
as of the Due Date in the month in which such Mortgage Loan became a Liquidated
Mortgage Loan plus (ii) accrued interest at the Mortgage Interest Rate from
the Due Date as to which interest was last paid or for which a Periodic Advance
was made (and not reimbursed) up to the Due Date applicable to the Distribution
Date immediately following the calendar month during which such liquidation
occurred.
Exchange
Act: The Securities Exchange Act of 1934, as
amended.
Xxxxxx
Xxx: Xxxxxx Xxx, or any successor thereto.
FDIC: The
Federal Deposit Insurance Corporation, or any successor thereto.
17
Final
Distribution Date: The Distribution Date on which the final
distribution in respect of some or all of the Certificates will be made pursuant
to Section 10.01.
Financial
Market Service: Bloomberg LP, Intex Solutions, Inc. and any
other financial information provider designated by the Depositor by written
notice to the Securities Administrator.
Form
8-K
Disclosure Information: As defined in Section 3.22(d).
Fractional
Interest: As defined in Section 5.02(d).
Gross
Margin: As to each Mortgage Loan, the fixed percentage set
forth in the related Mortgage Note and indicated in the related 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 the Group 1, Group 2, Group 3 or Group 4.
Group
1: The Group 1 Certificates.
Group
1
Mortgage Loan: Each Mortgage Loan listed on Exhibit D-1
hereto.
Group
1
Certificates: The Class 1-A-1 and Class 1-A-2
Certificates.
Group
2: The Group 2 Certificates.
Group
2
Mortgage Loan: Each Mortgage Loan listed on Exhibit D-2
hereto.
Group
2
Certificates: The Class 2-A-1, Class 2-A-2 and
Class 2-A-R Certificates.
Group
3: The Group 3 Certificates.
Group
3
Mortgage Loan: Each Mortgage Loan listed on Exhibit D-3
hereto.
Group
3
Certificates: The Class 3-A-1, Class 3-A-2, Class 3-A-3
and Class 3-A-4 Certificates.
Group
4: The Group 4 Certificates.
Group
4
Mortgage Loan: Each Mortgage Loan listed on Exhibit D-4
hereto.
Group
4
Certificates: The Class 4-A-1, Class 4-A-2 and Class
4-A-3 Certificates.
Group
J: Group 1, Group 2 and the Class X-X
Certificates.
Group
J
Mortgage Loans: The Group 1 Mortgage Loans and the Group 2
Mortgage Loans.
18
Group
Subordinate Amount: With respect to any Distribution Date and
each Loan Group, the excess of the Pool 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.
Group
X: Group 3, Group 4 and the Class X-B
Certificates.
Group
X
Mortgage Loans: The Group 3 Mortgage Loans and the Group 4
Mortgage Loans.
Holder: A
Certificateholder.
Independent: When
used with respect to any specified Person means such a Person who (i) is in
fact independent of the Depositor, the Trustee, the Securities Administrator,
the Master Servicer and the Servicers, (ii) does not have any direct
financial interest or any material indirect financial interest in the Depositor,
the Trustee, the Securities Administrator, the Master Servicer or the Servicers
or in an affiliate of any of them, and (iii) is not connected with the
Depositor, the Trustee, the Securities Administrator, the Master Servicer or
the
Servicers as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions. When used with
respect to any accountants, a Person who is “independent” within the meaning of
Rule 2-01(B) of the Commission’s Regulation S-X.
Index: As
to any Mortgage Loan and Rate Adjustment Date, either of the [Six-Month LIBOR]
Index or the [One-Year LIBOR] Index. The Index applicable to each
Mortgage Loan will be indicated on the Mortgage Loan Schedule.
Initial
Class Certificate Balance: As to each Class of
Certificates (other than the Interest Only Certificates), the
Class Certificate Balance set forth in the Preliminary
Statement. The Interest Only Certificates have no Initial Class
Certificate Balance.
Insurance
Policy: With respect to any Mortgage Loan included in the
Trust Estate, any Primary Mortgage Insurance Policy or any other insurance
policy (including any policy covering any Mortgage Loan or Mortgaged Property,
including without limitation, any hazard insurance policy required pursuant
to
Section 3.12,
any title insurance policy described in Section 2.01 and
any Federal Housing Administration insurance policies and Department of Veterans
Affairs insurance policies), including all riders and endorsements thereto
in
effect, including any replacement policy or policies for any Insurance
Policies.
Insurance
Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such Insurance
Proceeds in respect of Insured Expenses.
Insured
Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
19
Interest
Accrual Period: As to any Distribution Date and each Class,
the period from and including the first day of the calendar month preceding
the
calendar month of such Distribution Date to but not including the first day
of
the calendar month of such Distribution Date.
Interest
Distribution Amount: For any Distribution Date and each Class
of Certificates, the sum of (i) Accrued Certificate Interest, subject to
reduction pursuant to Section 5.02(c) and
(ii) any Class Unpaid Interest Shortfall for such Class.
Interest
Only Certificates: The Class 3-A-4 Certificates.
Liquidated
Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) that was liquidated in
the
related Prepayment Period and as to which the applicable Servicer has certified
(in accordance with the applicable Servicing Agreement) that it has received
all
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, Advances and Capitalization
Reimbursement Amounts.
Loan
Group: Any of Loan Group 1, Loan Group 2, Loan Group 3, Loan
Group 4, Loan Group J or Loan Group X.
Loan
Group 1: The Group 1 Mortgage Loans.
Loan
Group 2: The Group 2 Mortgage Loans.
Loan
Group 3: The Group 3 Mortgage Loans.
Loan
Group 4: The Group 4 Mortgage Loans.
Loan
Group J: The Group 1 Mortgage Loans and the Group 2
Mortgage Loans.
Loan
Group X: The Group 3 Mortgage Loans and the Group 4
Mortgage Loans.
Loan-to-Value
Ratio: With respect to any Mortgage Loan and any date of
determination, the fraction, expressed as a percentage, the numerator of which
is the outstanding principal balance of the related Mortgage Loan at origination
and the denominator of which is the Appraised Value of the related Mortgaged
Property.
Losses: As
defined in Section 5.10.
Lower-Tier
Certificate Sub-Account: The sub-account of the Certificate
Account designated by the Securities Administrator pursuant to Section 3.09(h).
20
Lower-Tier
Distribution Amount: As defined in Section 5.02(a)
hereof.
Lower-Tier
REMIC: As defined in the Preliminary Statement, the assets of
which consist of the Mortgage Loans, such amounts as shall be held in the
Lower-Tier Certificate Sub-Account, the insurance policies, if any, relating
to
an Mortgage Loan and property which secured a Mortgage Loan and which has been
acquired by foreclosure or deed in lieu of foreclosure.
Master
Servicer: [__________], and its successors-in-interest and, if
a successor master servicer is appointed hereunder, such successor, as master
servicer.
Master
Servicer Custodial Account: The Eligible Account created and
maintained by the Master Servicer pursuant to Section 3.09(c)
in the name of the Master Servicer for the benefit of the Certificateholders
and
designated “[__________], as Master Servicer, in trust for the registered
holders of Banc of America Funding Corporation Mortgage Pass-Through
Certificates, Series 20[__]-[_].”
Master
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 Master
Servicer Custodial Account.
Master
Servicer’s Certificate: The monthly report required by Section
4.01.
Master
Servicing Officer: Any officer of the Master Servicer involved
in, or responsible for, the administration and master servicing of the Mortgage
Loans whose name appears on a list of servicing officers furnished to the
Securities Administrator and the Trustee by the Master Servicer, as such list
may from time to time be amended.
Master
Servicing Transfer Costs: All reasonable costs and expenses
(including attorney’s fees) incurred by the Trustee or a successor master
servicer in connection with the transfer of master servicing or servicing from
a
predecessor master servicer, including, without limitation, any costs or
expenses associated with the complete transfer of all master servicing data
or
servicing data and the completion, correction or manipulation of such master
servicing data or servicing data as may be required by the Trustee or successor
master servicer to correct any errors or insufficiencies in the master servicing
data or servicing data or otherwise to enable the Trustee or a successor master
servicer to master service or service, as the case may be, the applicable
Mortgage Loans properly and effectively.
Maximum
Initial Notional Amount: With respect to the Interest Only
Certificate, the Notional Amount set forth in the Preliminary
Statement.
MERS: As
defined in Section 2.01(b)(iii).
Middle-Tier
Certificate Sub-Account: The sub-account of the Certificate
Account designated by the Securities Administrator pursuant to Section 3.09(h).
Middle-Tier
Distribution Amount: As defined in Section 5.02(a)
hereof.
21
Middle-Tier
REMIC: As defined in the Preliminary Statement, the assets of
which consist of the Uncertificated Lower-Tier Regular Interests and such
amounts as shall be deemed held in the Middle-Tier Certificate
Sub-Account.
Monthly
Payment: The scheduled monthly payment on a Mortgage Loan due
on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to (i) any related
Debt Service Reduction and any Deficient Valuation that affects the amount
of
the monthly payment due on such Mortgage Loan and (ii) any Servicer Modification
(other than for Capitalization Reimbursement Amounts unless such Capitalization
Reimbursement Amounts have been reimbursed to the applicable Servicer from
payments on Mortgage Loans other than the Mortgage Loans with respect to which
such Capitalization Reimbursement Amounts relate), without giving effect to
any
extension granted or agreed to by such Servicer pursuant to the applicable
Servicing Agreement.
Monthly
Statement: As defined in Section 5.05(b).
Mortgage: The
mortgage, deed of trust or other instrument creating a first lien on a Mortgaged
Property securing a Mortgage Note or creating a first lien on a leasehold
interest.
Mortgage
File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
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 related 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 [_____] [__], 20[__], between BANA, as seller, and the Depositor, as
purchaser.
Mortgage
Loan Schedule: The list of Mortgage Loans (as from time to
time amended by the Master Servicer to reflect the addition of Substitute
Mortgage Loans and the deletion of Defective Mortgage Loans pursuant to the
provisions of this Agreement or upon a Servicer Modification) transferred to
the
Trustee as part of the Trust Estate and from time to time subject to this
Agreement, attached hereto as Exhibit X-0,
Xxxxxxx X-0,
Xxxxxxx X-0 and
Exhibit D-4,
setting forth the following information with respect to each Mortgage
Loan: (i) the Mortgage Loan identifying number; (ii) a code
indicating whether the Mortgaged Property is owner-occupied; (iii) the
property type for each Mortgaged Property; (iv) the original months to
maturity or the remaining months to maturity from the Cut-off Date; (v) the
Loan-to-Value Ratio at origination; (vi) the Mortgage Interest Rate 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
22
currently
in effect, such Due Date; (viii) the stated maturity date; (ix) the
amount of the Monthly Payment as of the Cut-off Date; (x) the paid-through
date; (xi) the original principal amount of the Mortgage Loan; (xii) the
principal balance of the Mortgage Loan as of the close of business on the
Cut-off Date, after application of payments of principal due on or before the
Cut-off Date, whether or not collected, and after deduction of any payments
collected of scheduled principal due after the Cut-off Date; (xiii) a code
indicating the purpose of the Mortgage Loan; (xiv) a code indicating the
documentation style; (xv) a code indicating the initial Servicer;
(xvi) the Appraised Value; (xvii) the first Rate Adjustment Date;
(xviii) the Rate Ceiling; (xix) the Rate Floor; (xx) the Periodic Cap, if
applicable; (xxi) the Gross Margin; (xxii) the Index; (xxiii) the closing date
of the Mortgage Loan; and (xxiv) the Servicing Fee Rate. With respect
to the Mortgage Loans in the aggregate, the Mortgage Loan Schedule shall set
forth the following information, as of the Cut-off Date: (i) the
number of Mortgage Loans; (ii) the Cut-off Date Pool Principal Balance;
(iii) the weighted average Mortgage Interest Rate of the Mortgage Loans;
and (iv) the weighted average months to maturity of the Mortgage
Loans.
Mortgage
Loans: Such of the mortgage loans transferred and assigned to
the Trustee pursuant to Section 2.01 as
from time to time are held as a part of the Trust Estate (including any
Substitute Mortgage Loans and REO Property), the Mortgage Loans originally
so
held being identified in the Mortgage Loan Schedule.
Mortgage
Note: The originally executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan,
together with all riders thereto and amendments thereof.
Mortgaged
Property: The underlying property securing a Mortgage Loan,
which may include Cooperative Stock or residential long-term
leases.
Mortgagor: The
obligor on a Mortgage Note.
Net
Mortgage Interest Rate: As to any Mortgage Loan and
Distribution Date, such Mortgage Loan’s Mortgage Interest Rate thereon on the
first day of the calendar month preceding the month of such Distribution Date
reduced by the applicable Servicing Fee Rate for such Mortgage
Loan.
Net
WAC: As to any Loan Group and any Distribution Date, the
weighted average of the Net Mortgage Interest Rates of the Mortgage Loans in
such Loan Group (based on Stated Principal Balances of the Mortgage Loans in
such Loan Group on the Due Date in the month preceding the month of such
Distribution Date).
Non-Supported
Interest Shortfalls: As to any Distribution Date and (i) Loan
Group J, the amount, if any, by which the aggregate of Prepayment Interest
Shortfalls related to Group J Mortgage Loans exceeds the aggregate Compensating
Interest for such Mortgage Loans for such Distribution Date and (ii) Loan Group
X, the amount, if any, by which the aggregate of Prepayment Interest Shortfalls
related to the Group X Mortgage Loans exceeds the aggregate Compensating
Interest for such Mortgage Loans for such Distribution Date.
Non-U.S.
Person: A Person other than a U.S. Person.
23
Nonrecoverable
Advance: Any portion of an Advance previously made or proposed
to be made in respect of a Mortgage Loan which has not been previously
reimbursed and which, in the good faith judgment of the applicable Servicer
will
not or, in the case of a proposed Advance, would not be ultimately recoverable
from the related Mortgagor, related Liquidation Proceeds, Insurance Proceeds
or
other recoveries in respect of the related Mortgage
Loan. Notwithstanding the foregoing, an Advance in respect of
principal and/or interest (or other amounts) which are subsequently forgiven
as
a Servicer Modification shall be deemed a Nonrecoverable Advance.
NYCEMA: A
New York Consolidation, Extension and Modification Agreement.
OCC: The
Office of the Comptroller of Currency.
Offered
Certificates: The Senior Certificates and the Class X-X-1,
Class X-X-2, Class X-X-3, Class X-B-1, Class X-B-2 and
Class X-B-3 Certificates.
Officer’s
Certificate: A certificate signed by the Chairman of the
Board, Vice Chairman of the Board, President or a Vice President and by the
Treasurer, the Secretary or one of the Assistant Treasurers or Assistant
Secretaries, or any other duly authorized officer of the Depositor or the Master
Servicer, as the case may be, and delivered to the Trustee or the Securities
Administrator, as required in this Agreement.
[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 if such opinion is delivered to the Trustee, or acceptable to the
Securities Administrator if such opinion is delivered to the Securities
Administrator, who may be counsel for the Depositor or the Master Servicer,
except that any opinion of counsel relating to the qualification of any REMIC
created hereunder as a REMIC or compliance with the REMIC Provisions must be
an
opinion of Independent counsel.
Original
Fractional Interest: With respect to each of the following
Classes of Subordinated Certificates, the corresponding percentage described
below, as of the Closing Date:
|
Class
X-X-1
|
[_____]%
|
|
Class
X-X-2
|
[_____]%
|
|
Class
X-X-3
|
[_____]%
|
|
Class
X-X-4
|
[_____]%
|
|
Class
X-X-5
|
[_____]%
|
|
Class
X-X-0
|
X/X
|
00
|
Xxxxx
X-X-0
|
[_____]%
|
|
Class
X-B-2
|
[_____]%
|
|
Class
X-B-3
|
[_____]%
|
|
Class
X-B-4
|
[_____]%
|
|
Class
X-B-5
|
[_____]%
|
|
Class
X-B-6
|
N/A
|
Original
Subordinate Certificate Balance: With respect to the Class X-X
Certificates, $[__________], and with respect to the Class X-B Certificates,
$[__________].
OTS: The
Office of Thrift Supervision.
Outstanding
Mortgage Loan: As to any Due Date, a Mortgage Loan which was
not the subject of a Principal Prepayment in Full prior to such Due Date, which
did not become a Liquidated Mortgage Loan prior to such Due Date and which
was
not purchased from the Trust prior to such Due Date pursuant to Sections 2.02 or
2.04.
Ownership
Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as
the
Holder thereof and any other interest therein, whether direct or indirect,
legal
or beneficial, as owner or as pledgee.
Pass-Through
Rate: With respect to each Distribution Date and any Class,
the per annum rate set forth or described in the Preliminary
Statement. With respect to each Distribution Date and the
Uncertificated Lower-Tier Regular Interests, the Uncertificated Lower-Tier
REMIC
Pass-Through Rate. With respect to each Distribution Date and the
Uncertificated Middle-Tier Regular Interests, the Uncertificated Middle-Tier
REMIC Pass-Through Rate.
Paying
Agent: As defined in Section 9.13.
Percentage
Interest: As to any Certificate, the percentage obtained by
dividing the Denomination of such Certificate by the Initial Class Certificate
Balance of the Class of which such Certificate is a part.
Periodic
Advance: With respect to each Servicer, shall have the meaning
given to term “Monthly Advance” in the applicable Servicing
Agreement.
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 and designated as such in the applicable
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, Xxxxxxx
Mac,
Xxxxxx Xxx 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 Xxxxxxx Mac or Xxxxxx Xxx shall be limited to senior debt
obligations and mortgage participation certificates other than investments
in
mortgage-backed or mortgage participation securities with yields evidencing
extreme
25
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 “[__]” by [_____], “[__]” by [_____] and “[__]” by
[_____];
(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 “[__]” by [_____], “[__]” by [_____] and
“[__]” by [_____];
(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 ““[__]” by [_____], “[__]” by [_____] and
“[__]” by [_____];
(v) investments
in money market funds (including funds of the Securities Administrator or its
affiliates, or funds for which an affiliate of the Securities Administrator
acts
as advisor, as well as funds for which the Securities Administrator and its
affiliates may receive compensation) rated “[__]” by [_____], “[__]” by [_____]
and “[__]” by [_____] or otherwise approved in writing by each Rating Agency;
and
(vi) other
obligations or securities that are acceptable to each Rating Agency and, as
evidenced by an Opinion of Counsel obtained by the Master Servicer or Securities
Administrator, as the case may be, will not affect the qualification of any
REMIC created under this Agreement as a REMIC;
provided,
however, that no instrument
shall be a Permitted Investment if it represents either (a) the right to
receive only interest payments with respect to the underlying debt instrument
or
(b) the right to receive both principal and interest payments derived from
obligations underlying such instrument and the principal and interest with
respect to such instrument provide a yield to maturity greater than 120% of
the
yield to maturity at par of such underlying obligations.
Permitted
Transferee: Any Person other than (i) the United States,
or any State or any political subdivision thereof, or any agency or
instrumentality of any of the foregoing, (ii) a foreign government,
international organization or any agency or instrumentality of either of the
foregoing, (iii) an organization which is exempt from tax imposed by
Chapter 1 of the Code (including the tax imposed by Section 511 of the
Code on unrelated business taxable income) (except certain farmers’ cooperatives
described in Code Section 521), (iv) rural electric and telephone
cooperatives described in Code Section 1381(a)(2)(C), (v) a Person
with respect to whom the income on the Residual Certificate is allocable to
a
foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of such Person or any other
26
U.S.
Person, and (vi) any other Person so designated by the Depositor based on
an Opinion of Counsel to the effect that any transfer to such Person may cause
the Trust or any other Holder of the Residual Certificate to incur tax liability
that would not be imposed other than on account of such transfer. The
terms “United States,” “State” and “international organization” shall have the
meanings set forth in Code Section 7701 or successor
provisions.
Person: Any
individual, corporation, limited liability company, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Physical
Certificates: The Class 2-A-R, Class X-X-4,
Class X-X-5, Class X-X-6, Class X-B-4, Class X-B-5 and
Class X-B-6 Certificates.
Plan: As
defined in Section 6.02(e).
Pool
Distribution Amount: As to any Distribution Date and each 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 related Servicing Fees) and the principal portion of any Monthly
Payment on a Mortgage Loan in such Loan Group due on the Due Date in the month
in which such Distribution Date occurs and which is received prior to the
related Determination Date and (B) all Periodic Advances made by a Servicer
(or the Master Servicer or the Trustee, as applicable) in respect of such Loan
Group and payments of Compensating Interest allocable to such Loan Group made
by
the applicable Servicer in respect of such Loan Group and such Distribution
Date
deposited to the Master Servicer Custodial Account pursuant to Section 3.09(d)(vi);
(ii) all Liquidation Proceeds (other than Excess Proceeds) received on the
Mortgage Loans in such Loan Group during the related Prepayment Period and
deposited to the Master Servicer Custodial Account pursuant to Section 3.09(d)(iii);
(iii) all Principal Prepayments received on the Mortgage Loans in such Loan
Group during the related Prepayment Period; (iv) in connection with any
Mortgage Loans that are Defective Mortgage Loans in such Loan Group, the
aggregate of the Purchase Prices and Substitution Adjustment Amounts remitted
on
the related Remittance Date pursuant to Section 3.09(d)(vii);
(v) any other amounts in the Master Servicer Custodial Account deposited therein
pursuant to Section 3.09(d)(iv),
(v),
(viii),
(ix),
and (x) in respect
of
such Distribution Date and such Loan Group; (vi) any Reimbursement Amount
required to be included pursuant to Section 5.02;
over (b) any amounts permitted to be withdrawn from the Master Servicer
Custodial Account pursuant to clauses (i) through (viii),
inclusive, of Section 3.11 in
respect of such Loan Group.
Pool
Principal Balance: As to any Distribution Date and any Loan
Group, the aggregate Stated Principal Balance of all Mortgage Loans in such
Loan
Group that were Outstanding Mortgage Loans immediately following the Due Date
in
the month preceding the month in which such Distribution Date
occurs.
Prepayment
Interest Shortfall: As to any Distribution Date and each
Mortgage Loan subject to a Principal Prepayment received during the related
Prepayment Period, the amount, if any, by which one month’s interest at the
related Net Mortgage Interest Rate on such Principal Prepayment exceeds the
amount of interest paid in connection with such Principal
Prepayment.
27
Prepayment
Period: With respect to any Distribution Date, the calendar
month preceding the calendar month in which such Distribution Date
occurs.
Primary
Mortgage Insurance Policy: Each policy of primary mortgage
guaranty insurance or any replacement policy therefor with respect to any
Mortgage Loan, in each case issued by an insurer acceptable to Xxxxxx Xxx or
Xxxxxxx Mac.
Prime
Rate: The prime rate announced to be in effect from time to
time, as published as the average rate in The Wall Street
Journal.
Principal
Amount: As to any Distribution Date and Loan Group, the sum of
(1) 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 (i) any Mortgage Loan in
such Loan Group repurchased by the Sponsor pursuant to the Mortgage Loan
Purchase Agreement or a Purchase Obligation as of such Distribution Date, (ii)
any Mortgage Loan in such Loan Group repurchased by the Depositor pursuant
to a
Purchase Obligation as of such Distribution Date, (iii) any Mortgage Loan in
such Loan Group repurchased by a Servicer pursuant to a Servicing Agreement
or
(iv) any Mortgage Loan in such Loan Group purchased pursuant to Section 10.01 hereof,
(c) any Substitution Adjustment Amount in connection with a Defective Mortgage
Loan in such Loan Group received during the related Prepayment Period, (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 related Prepayment Period, (e) with respect to each Mortgage
Loan in such Loan Group that became a Liquidated Mortgage Loan during the
related Prepayment Period, the amount of Liquidation Proceeds (excluding Excess
Proceeds) allocable to principal received by a Servicer with respect to such
Mortgage Loan during such period and (f) all Principal Prepayments on the
Mortgage Loans in such Loan Group received by a Servicer during the related
Prepayment Period and (2) any Recovery related to such Loan Group for such
Distribution Date.
Principal
Prepayment: With respect to each Mortgage Loan, any payment or
other recovery of principal on such Mortgage Loan (other than Liquidation
Proceeds) which is received in advance of its scheduled Due Date and is not
accompanied by an amount of interest representing scheduled interest due on
any
date or dates in any month or months subsequent to the month of
prepayment.
Principal
Prepayment in Full: Any Principal Prepayment of the entire
principal balance of a Mortgage Loan.
Private
Certificates: The Class X-X-4, Class X-X-5,
Class X-X-6, Class X-B-4, Class X-B-5 and Class X-B-6
Certificates.
Pro
Rata
Share: As to any Distribution Date and (i) any Class of Class
X-X Certificates that is not a Restricted Class, the portion of the Subordinate
Principal Distribution Amounts for the Loan Group J allocable to such Class,
equal to the product of the Subordinate Principal Distribution Amounts for
Loan
Group J 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
28
aggregate
Class Certificate Balance of the Class X-X Certificates that are not Restricted
Classes and (ii) any Class of Class X-B Certificates that is not a Restricted
Class, the portion of the Subordinate Principal Distribution Amount for Loan
Group X allocable to such Class, equal to the product of the Subordinate
Principal Distribution Amount for Loan Group X for such Distribution Date and
a
fraction, the numerator of which is the related Class Certificate Balance
thereof and the denominator of which is the aggregate Class Certificate Balance
of the Class X-B Certificates that are not Restricted Classes. The
Pro Rata Share of a Restricted Class shall be 0%.
Purchase
Obligation: An obligation of the Sponsor or the Depositor to
purchase Mortgage Loans under the circumstances and in the manner provided
in
Section 2.02 or
2.04.
Purchase
Price: With respect to each Mortgage Loan that was a Defective
Mortgage Loan repurchased on any date pursuant to Sections 2.02 or
2.04,
an amount
equal to the sum of (i) the Stated Principal Balance of the Mortgage Loan,
(ii) interest on such Stated Principal Balance at the Mortgage Interest
Rate from the date on which interest has last been paid and distributed through
the last day of the month in which such repurchase takes place and
(iii) any costs and damages incurred by the Trust in connection with any
violation by such repurchased Mortgage Loan of any predatory or abusive lending
law, less
(x) amounts received or advanced in respect of such repurchased Mortgage
Loan which are being held in the applicable Servicer Custodial Account for
distribution in the month of repurchase and (y) if the Person repurchasing
such Mortgage Loan is servicing such Mortgage Loan under the related Servicing
Agreement, the Servicing Fee for such Mortgage Loan.
Rate
Adjustment Date: As to each Mortgage Loan, the Due Date on
which 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 related Mortgage
Loan Schedule.
Rate
Floor: The minimum per annum Mortgage Interest Rate permitted
under the related Mortgage Note and indicated on the related Mortgage Loan
Schedule.
Rating
Agency: Each of [_____],[_____] and [_____]. If any
such organization or a successor is no longer in existence, “Rating Agency”
shall be such nationally recognized statistical rating organization, or other
comparable Person, as is designated by the Depositor, notice of which
designation shall be given to the Trustee, the Master Servicer and the
Securities Administrator. References herein to a given rating or
rating category of a Rating Agency shall mean such rating category without
giving effect to any modifiers.
Realized
Loss: With respect to each Liquidated Mortgage Loan, an amount
as of the date of such liquidation, equal to (i) the unpaid principal
balance of the Liquidated Mortgage Loan as of the date of such liquidation,
plus
(ii) interest at the Net Mortgage Interest Rate from the Due Date as to
which interest was last paid or advanced (and not reimbursed) to
Certificateholders up to the Due Date in the month in which Liquidation Proceeds
are required to be distributed on the Stated Principal Balance of such
Liquidated Mortgage Loan from time to time, minus
(iii) the
29
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. With respect to each
Mortgage Loan that has become the subject of a Servicer Modification, the
amount, if any, by which the unpaid principal balance of such Mortgage Loan
has
been reduced.
Recognition
Agreement: With respect to a Cooperative Loan, the recognition agreement
between the Cooperative and the originator of such Cooperative
Loan.
Record
Date: With respect to the Certificates, the last Business Day
of the month immediately preceding the month in which the related Distribution
Date occurs.
Recovery: As
to any Distribution Date and Loan Group, the sum, with respect to each Mortgage
Loan in such Loan Group, of amounts received during the calendar month preceding
the month of such Distribution Date on such Mortgage Loan subsequent to such
Mortgage Loan being determined to be a Liquidated Mortgage Loan.
Regular
Interest: Any of the Uncertificated Lower-Tier Regular
Interests, the Uncertificated Middle-Tier Regular Interests, and the Upper-Tier
Regular Interests.
Regulation
AB: Subpart 229.1100 – Asset Backed Securities (Regulation
AB), 17 C.F.R. §§229.1100 - 229.1123, as such may be amended from time to time,
and subject to such clarification and interpretation as have been provided
by
the Commission in the adopting release (Asset-Backed Securities, Securities
Act
Release No. 33-8518, 70 Fed. Reg. 1,506 - 1,631 (Jan. 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
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 Loan Group 4, Group 4.
Related
Loan Group: For Group 1, Loan Group 1; for Group 2, Loan Group
2; for Group 3, Loan Group 3; and for Group 4, Loan Group 4.
Relevant
Servicing Criteria: The Servicing Criteria applicable to the
various parties, as set forth on Exhibit N
attached hereto. The Servicing Criteria applicable to each
Servicer shall be as set forth on the applicable Servicing
Agreement. For clarification purposes, multiple parties can have
responsibility for the same Relevant Servicing Criteria. With respect
to a Servicing Function Participant engaged by the Master Servicer, the
Securities Administrator, the
30
Custodian
or any Servicer, the term “Relevant Servicing Criteria” may refer to a portion
of the Relevant Servicing Criteria applicable to such parties.
Relief
Act: The Servicemembers Civil Relief Act, as it may be amended
from time to time.
Relief
Act Reduction: With respect to any Distribution Date, for any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the related Collection Period as a result of the
application of the Relief Act or comparable state legislation, the amount,
if
any, by which (i) interest collectible on such Mortgage Loan for such
Collection Period is less than (ii) interest accrued pursuant to the terms
of the Mortgage Note on the same principal amount and for the same period as
the
interest collectible on such Mortgage Loan for the related Collection
Period.
REMIC: A
“real estate mortgage investment conduit” within the meaning of
Section 860D of the Code.
REMIC
Certificate Maturity Date: As set forth in Section 2.07.
REMIC
Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Section 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations promulgated thereunder, as the foregoing may be
in
effect from time to time, as well as provisions of applicable state
laws.
Remittance
Date: The [__]th
day of
each month beginning in [month] [year] (or, if such day is not a Business Day,
the immediately preceding Business Day).
REO
Disposition Period: As defined in Section 3.15.
REO
Proceeds: Proceeds, net of any related expenses of a Servicer
received in respect of any REO Property (including, without limitation, proceeds
from the rental of the related Mortgaged Property), which are received prior
to
the final liquidation of such Mortgaged Property.
REO
Property: A Mortgaged Property acquired by a Servicer
servicing the related Mortgage Loan on behalf of the Trust through foreclosure
or deed-in-lieu of foreclosure in connection with a defaulted Mortgage
Loan.
Reportable
Event: As defined in Section 3.22(d).
Reporting
Servicer: As defined in Section 3.22(c)(i).
Request
for Release: The Request for Release submitted by a Servicer
to the Custodian on behalf of the Trustee, substantially in the form attached
hereto as Exhibit E.
Required
Insurance Policy: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to time under
this
Agreement in respect of such Mortgage Loan.
31
Residual
Certificate: The Class 2-A-R Certificate.
Responsible
Officer: When used with respect to the Trustee or the
Securities Administrator, any officer of the Corporate Trust Department of
the
Trustee or the Securities Administrator, as applicable, including any Senior
Vice President, any Vice President, any Assistant Vice President, any Assistant
Secretary, any Trust Officer or Assistant Trust Officer, or any other officer
of
the Trustee or Securities Administrator, as applicable, customarily performing
functions similar to those performed by any of the above designated officers
and
having direct responsibility for the administration of this
Agreement.
Restricted
Classes: As defined in Section 5.02(d).
Xxxxxxxx-Xxxxx
Certification: As defined in Section 3.22(e).
Securities
Administrator: [__________] and its successors-in-interest
and, if a successor securities administrator is appointed hereunder, such
successor, as securities administrator.
Security
Agreement: With respect to a Cooperative Loan, the agreement or mortgage
creating a security interest in favor of the originator of the Cooperative
Loan
in the related Cooperative Stock.
Senior
Certificates: The Class 1-A-1, Class 1-A-2, Class 2-A-R, Class
2-A-1, Class 2-A-2, Class 3-A-1, Class 3-A-2, Class 3-A-3, Class 3-A-4, Class
4-A-1, Class 4-A-2 and Class 4-A-3 Certificates, each of which (other than
the
Class 2-A-R Certificate) represents the Corresponding Upper-Tier Regular
Interest for purposes of the REMIC Provisions.
Senior
Credit Support Depletion Date: With respect to (i) the Group
J, the date on which the aggregate Class Certificate Balance of the Class X-X
Certificates is reduced to zero and (ii) Group X, the date on which the
aggregate Class Certificate Balance of the Class X-B Certificates is reduced
to
zero.
Senior
Percentage: With respect to any Distribution Date and Loan
Group, the percentage, carried to six places rounded up, obtained by dividing
(i) the aggregate Class Certificate Balance of the Senior Certificates
of the Related Group immediately prior to such Distribution Date, by
(ii) the Pool Principal Balance of such Loan Group for such Distribution
Date.
Senior
Prepayment Percentage: For any Distribution Date and each Loan
Group during the [seven (7)] years beginning on the first Distribution Date,
[100]%. The Senior Prepayment Percentage for any Distribution Date
and each Loan Group occurring on or after the [seventh] anniversary of the
first
Distribution Date will, except as provided herein, be as follows: for any
Distribution Date in the first (1st) year thereafter, the Senior Percentage
for
such Loan Group plus [70]% of the Subordinate Percentage for such Loan Group
for
such Distribution Date; for any Distribution Date in the second (2nd) year
thereafter, the Senior Percentage for such Loan Group plus [60]% of the
Subordinate Percentage for such Loan Group for such Distribution Date; for
any
Distribution Date in the third (3rd) year thereafter, the Senior Percentage
for
such Loan Group plus [40]% of the Subordinate Percentage for such
Loan Group for such
32
Distribution
Date; for any Distribution Date in the fourth (4th) year thereafter, the Senior
Percentage for such Loan Group plus [20]% of the Subordinate Percentage for
such
Loan Group for such Distribution Date; and for any Distribution Date in the
fifth (5th) or later years thereafter, the Senior Percentage for such Loan
Group
for such Distribution Date (unless on any of the foregoing Distribution Dates,
(i) (a) the Total Senior Percentage for Loan Group J for such Distribution
Date
exceeds the Total Senior Percentage for Loan Group J calculated as of the
Closing Date, in which case the Senior Prepayment Percentage for each Loan
Group
in Loan Group J for such Distribution Date will once again equal 100% or (b)
the
Total Senior Percentage for Loan Group X for such Distribution Date exceeds
the
Total Senior Percentage for Loan Group X calculated as of the Closing Date,
in
which case the Senior Prepayment Percentage for each Loan Group in Loan Group
X
for such Distribution Date will once again equal 100%, (ii) on any Distribution
Date before the Distribution Date occurring in [_____] 20[_], (a) the Total
Subordinate Percentage for Loan Group J for such Distribution Date is greater
than or equal to twice the initial Total Subordinate Percentage for Loan Group
J, in which case the Senior Prepayment Percentage for each Loan Group in Loan
Group J for such Distribution Date will equal the Senior Percentage for such
Loan Group plus 50% of the Subordinate Percentage for such Loan Group or (b)
the
Total Subordinate Percentage for Loan Group X for such Distribution Date is
greater than or equal to twice the initial Total Subordinate Percentage for
Loan
Group X, in which case the Senior Prepayment Percentage for each Loan Group
in
Loan Group X for such Distribution Date will equal the Senior Percentage for
such Loan Group plus 50% of the Subordinate Percentage for such Loan Group,
or
(iii) on any Distribution Date occurring on or after the Distribution Date
in
[_____] 20[_], (a) the Total Subordinate Percentage for Loan Group J for such
Distribution Date is greater than or equal to twice the initial Total
Subordinate Percentage for Loan Group J, in which case the Senior Prepayment
Percentage for each Loan Group in Loan Group J for such Distribution Date will
equal the Senior Percentage for such Loan Group or (b) the Total Subordinate
Percentage for Loan Group X for such Distribution Date is greater than or equal
to twice the initial Total Subordinate Percentage for Loan Group X, in which
case the Senior Prepayment Percentage for each Loan Group in Loan Group X for
such Distribution Date will equal the Senior Percentage for such 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 or all 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, the sum of (a) 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 (b) 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
Step Down Conditions: As of any Distribution Date as to which
any decrease in the Senior Prepayment Percentage for Loan Group J or Loan Group
X, as applicable, applies, (i) the outstanding principal balance of all
Mortgage Loans in Loan Group J or Loan Group X, as applicable, (including,
for
this purpose, any such Mortgage Loans in foreclosure, any related
33
REO
Property, any such Mortgage Loan for which the Mortgagor has filed for
bankruptcy after the Closing Date and any Mortgage Loan that was the subject
of
a Servicer Modification within twelve months prior to such Distribution Date)
delinquent 60 days or more (averaged over the preceding six month period),
as a
percentage of the aggregate Class Certificate Balance of the Class X-X
Certificates (in the case of Loan Group J) or the Class X-B Certificates (in
the
case of Loan Group X) is not equal to or greater than 50% or
(ii) cumulative Realized Losses with respect to the Group J Mortgage Loans
or Group X Mortgage Loans as of the applicable Distribution Date do not exceed
the percentage of the applicable Original Subordinate Principal Balance set
forth below:
|
Distribution
Date Occurring
|
Percentage
of
Original
Subordinate
Certificate
Balance
|
|
|
[month]
[year] through [month] [year]
|
[20]%
|
|
|
[month]
[year] through [month] [year]
|
[30]%
|
|
|
[month]
[year] through [month] [year]
|
[35]%
|
|
|
[month]
[year] through [month] [year]
|
[40]%
|
|
|
[month]
[year] through [month] [year]
|
[45]%
|
|
|
[month]
[year] and thereafter
|
[50]%
|
|
Servicer: Any
of [_____] and [_____], each in their capacity as a servicer of the Mortgage
Loans, or any successor servicer appointed as herein provided.
Servicer
Custodial Accounts: The separate accounts created and
maintained by each of the Servicers pursuant to the applicable Servicing
Agreement.
Servicer
Modification: With respect to each Mortgage Loan, the
modification to the terms of a Mortgage Loan as to which the related Mortgagor
is in default or which, in the judgment of the applicable Servicer, default
is
reasonably foreseeable.
Servicing
Advance: With respect to each Servicer, shall have the meaning
given to the term “Servicing Advances” in the applicable Servicing
Agreement.
Servicing
Agreements: Any of the [_____] Servicing Agreement and the
[_____] Servicing Agreement.
Servicing
Criteria: The criteria set forth in paragraph (d) of Item
1122 of Regulation AB, as such may be amended from time to time
Servicing
Fee: With respect to each Servicer, as defined in the
applicable Servicing Agreement.
Servicing
Fee Rate: With respect to each Mortgage Loan, as set forth on
the applicable Mortgage Loan Schedule.
Servicing
File: With respect to each Mortgage Loan, as defined in the
applicable Servicing Agreement.
34
Servicing
Function Participant: Any Subcontractor utilized by the Master
Servicer, the Securities Administrator or the Custodian that is “participating
in the servicing function” within the meaning of Item 1122 of Regulation
AB.
Servicing
Officer: With respect to each Servicer, as defined in the
related Servicing Agreement.
Servicing
Transfer Costs: All reasonable costs and expenses of the
Master Servicer or the Trustee, as applicable, related to any termination of
a
Servicer, appointment of a successor Servicer or the transfer and assumption
of
servicing by the Master Servicer or the Trustee, as applicable, with respect
to
any Servicing Agreement (including, without limitation, (i) all legal costs
and expenses and all due diligence costs and expenses associated with an
evaluation of the potential termination of the Servicer as a result of an event
of default by such Servicer and (ii) any costs or expenses associated with
the complete transfer of all servicing data and the completion, correction
or
manipulation of such servicing data as may be required by the Master Servicer
or
the Trustee, as applicable, to correct any errors or insufficiencies in the
servicing data or otherwise to enable the Master Servicer or the Trustee, as
applicable, to service the Mortgage Loans properly and
effectively).
Similar
Law: As defined in Section 6.02(e).
[Six-Month
LIBOR Index: A rate per annum that is defined to be the
average of 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 the date 45 days before the applicable Rate Adjustment Date.]
Sponsor: Bank
of America, National Association, a national banking association, or its
successor in interest, as seller of the Mortgage Loans under the Mortgage Loan
Purchase Agreement.
Stated
Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such date as specified
in
the amortization schedule at the time relating thereto (before any adjustment
to
such amortization schedule by reason of any moratorium or similar waiver or
grace period or any adjustment to such amortization schedule for any
Capitalization Reimbursement Amounts other than the amount of such
Capitalization Reimbursement Amounts which have been reimbursed to the
applicable Servicer from payments on Mortgage Loans other than the Mortgage
Loans with respect to which such Capitalization Reimbursement Amounts relate)
after giving effect to any previous partial Principal Prepayments, the principal
portion of Realized Losses as a result of a Servicer Modification incurred
prior
to such Due Date and Liquidation Proceeds allocable to principal (other than
with respect to any Liquidated Mortgage Loan) and to the payment of principal
due on such Due Date and irrespective of any delinquency in payment by the
related Mortgagor, and after giving effect to any Deficient
Valuation.
Subcontractor: Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing of Mortgage Loans but performs one or more discrete functions
identified in
35
Item
1122(d) of Regulation AB with respect to Mortgage Loans under the direction
or authority of the Master Servicer, the Securities Administrator or the
Custodian.
Subordinate
Balance Ratio: As of any date of determination and Loan Group
J, the ratio among the principal balances of the Class 1-LS Interest and Class
2-LS Interest equal to the ratio among the Group Subordinate Amounts of Loan
Group 1 and Loan Group 2. As of any date of determination and Loan
Group X, the ratio among the principal balances of the Class 3-LS Interest
and
Class 4-LS Interest equal to the ratio among the Group Subordinate Amounts
of
Loan Group 3 and Loan Group 4.
Subordinate
Percentage: As of any Distribution Date and each Loan Group,
100% minus the Senior Percentage for such Loan Group for such Distribution
Date.
Subordinate
Prepayment Percentage: As to any Distribution Date and each
Loan Group, 100% minus the Senior Prepayment Percentage for such Loan Group
for
such Distribution Date.
Subordinate
Principal Distribution Amount: With respect to any
Distribution Date and Loan Group, an amount equal to the sum of (a) 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 (b) the Subordinate
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.
Subordinated
Certificates: The Class X-X-1, Class X-X-2, Class X-X-3, Class
X-X-4, Class X-X-5, Class X-X-6, Class X-B-1, Class X-B-2, Class X-B-3, Class
X-B-4, Class X-B-5 and Class X-B-6 Certificates, each of which represents the
Corresponding Upper-Tier Regular Interest for purposes of the REMIC
Provisions.
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 Gross Margin not less than that of the Defective
Mortgage Loan; (v) have a Periodic Cap and Rate Ceiling equal to that of the
Defective Mortgage Loan; (vi) have the same Index and frequency of Mortgage
Interest Rate adjustment as the Defective Mortgage Loan; (vii) have a
Loan-to-Value Ratio not higher than that of the Defective Mortgage Loan;
(viii) have a credit score not less than that of the Defective Mortgage
Loan; (ix) have a credit grade not lower in quality than that of the Defective
Mortgage Loan; (x) have the same lien priority as the Defective Mortgage Loan;
(xi) have a remaining term to maturity not greater than (and not more than
one
year less than) that of the Defective Mortgage Loan; and (xii) comply with
each
Mortgage Loan representation and warranty set forth in the Mortgage Loan
Purchase Agreement, the related underlying sale agreement, if applicable, the
related Servicing Agreement, if applicable, and this Agreement. More
than one Substitute Mortgage Loan may be substituted for a Defective Mortgage
Loan if such Substitute Mortgage Loans meet the foregoing attributes in the
aggregate.
36
Substitution
Adjustment Amount: As defined in Section 2.02.
Tax
Matters Person: Any person designated as “tax matters person”
in accordance with Section 5.07 and
the manner provided under Treasury Regulation § 1.860F-4(d) and
Treasury Regulation § 301.6231(a)(7)-1.
Total
Senior Percentage: With respect to any Distribution Date and
Loan Group J or Loan Group X, the percentage, carried six places rounded up,
obtained by dividing the aggregate Class Certificate Balance of the Senior
Certificates in the related Groups immediately prior to such Distribution Date
by the aggregate Pool Principal Balance for Loan Group J or Loan Group X, as
the
case may be, with respect to such Distribution Date.
Total
Subordinate Percentage: As to any Distribution Date and Loan
Group J or Loan Group X, the aggregate Class Certificate Balance of the
Class X-X or Class X-B Certificates divided by the aggregate Pool Principal
Balance for Loan Group J or Loan Group X, as the case may be.
Treasury
Regulations: The final and temporary regulations promulgated
under the Code by the U.S. Department of the Treasury.
Trust: The
trust created by this Agreement, which shall be named the “Banc of America
Funding 20[__]-[_] 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 multiple REMIC elections are to be made
as
specified herein, such entire Trust Estate consisting of: (i) such Mortgage
Loans as from time to time are subject to this Agreement, together with the
Mortgage Files relating thereto, and together with all collections thereon
and
proceeds thereof, (ii) any REO Property, together with all collections
thereon and proceeds thereof, (iii) the Trustee’s rights with respect to
the Mortgage Loans under all insurance policies required to be maintained
pursuant to this Agreement and any proceeds thereof, (iv) the right to
receive amounts, if any, payable on behalf of any Mortgagor from the Buy-Down
Account relating to any Buy-Down Mortgage Loan, (v) the Depositor’s rights
under the Servicing Agreements, the underlying sale agreements and the Mortgage
Loan Purchase Agreement (including any security interest created thereby) and
(vi) the Servicer Custodial Accounts, the Master Servicer Custodial Account
and
the Certificate Account and such assets that are deposited therein from time
to
time and any investments thereof, together with any and all income, proceeds
and
payments with respect thereto. The Buy-Down Account shall not be part
of the Trust Estate.
Trustee: [__________],
and its successors-in-interest and, if a successor trustee is appointed
hereunder, such successor, as trustee.
Uncertificated
Accrued Interest: With respect to each interest-bearing
Regular Interest on each Distribution Date, an amount equal to one month’s
interest at the related Pass-Through Rate on the Uncertificated Balance or
Notional Amount of such Regular Interest. In the case of each Regular
Interest, Uncertificated Accrued Interest will be reduced by any
Non-Supported
37
Interest
Shortfalls and any Relief Act Reductions, allocated to such Regular Interest
as
provided in Section
5.04.
Uncertificated
Balance: With respect to each Regular Interest, the principal
or notional amount of such Regular Interest outstanding as of any date of
determination. As of the Closing Date, the Uncertificated Balance of
each Regular Interest shall equal the amount set forth in the Preliminary
Statement hereto as its initial Uncertificated Balance. On each
Distribution Date, the Uncertificated Balance of each Regular Interest shall
be
reduced by all distributions of principal made on such Regular Interest on
such
Distribution Date pursuant to Section 5.02 and, if
and to the extent necessary and appropriate, shall be further reduced on such
Distribution Date by Realized Losses as provided in Section
5.04. The Uncertificated Balance of each Regular Interest
shall never be less than zero.
Uncertificated
Lower-Tier Interests: The Uncertificated Lower-Tier Regular
Interests and the Class LR interest, which represents the sole class of residual
interest in the Lower-Tier REMIC.
Uncertificated
Lower-Tier Regular Interest: A regular interest in the
Lower-Tier REMIC which is held as an asset of the Middle-Tier REMIC and is
entitled to monthly distributions as provided in Section 5.02
hereof. Any of the Class 1-L Interest, Class 1-LS Interest, Class 2-L
Interest, Class 2-LS Interest, Class 3-L Interest, Class 3-LS Interest, Class
4-L Interest and Class 4-LS Interest are Uncertificated Lower-Tier Regular
Interests.
Uncertificated
Lower-Tier REMIC Pass-Through Rate: With respect to
the
Class 1-L Interest and the Class 1-LS Interest, the Net WAC for the Group 1
Mortgage Loans. With respect to the Class 2-L Interest and the Class
2-LS Interest, the Net WAC for the Group 2 Mortgage Loans. With respect to
the
Class 3-L Interest and the Class 3-LS Interest, the Net WAC for the Group 3
Mortgage Loans. With respect to the Class 4-L Interest and
the Class 4-LS Interest, the Net WAC for the Group 4 Mortgage
Loans.
Uncertificated
Middle-Tier Interests: The Uncertificated Middle-Tier Regular
Interests and the Class MR Interest, which represents the sole class of residual
interest in the Middle-Tier REMIC.
Uncertificated
Middle-Tier Regular Interest: A regular interest in the
Middle-Tier REMIC which is held as an asset of the Upper-Tier REMIC and is
entitled to monthly distributions as provided in Section 5.02
hereof. Any of the Class MRI-1A1 Interest, the Class MRI-2AR
Interest, the Class MRI-2A1 Interest, the Class MRI-3A1 Interest, the Class
MRI-4A1 Interest, the Class MRI-JB1 Interest, the Class MRI-JB2 Interest, the
Class MRI-JB3 Interest, the Class MRI-JB4 Interest, the Class MRI-JB5 Interest,
the Class MRI-JB6 Interest, the Class MRI-XB1 Interest, the Class MRI-XB2
Interest, the Class MRI-XB3 Interest, the Class MRI-XB4 Interest, the Class
MRI-XB5 Interest, and the Class MRI-XB6 Interest are Uncertificated Middle-Tier
Regular Interests.
Uncertificated
Middle-Tier REMIC Pass-Through Rate: With respect to the Class
MRI-1A1 Interest, the weighted average of the Uncertificated Lower-Tier REMIC
Pass-Through Rates for the Class 1-L Interest and the Class 1-LS
Interest. With respect to the Class MRI-2AR
38
Interest
and the Class MRI-2A1 Interest, the weighted average of the Uncertificated
Lower-Tier REMIC Pass-Through Rates for the Class 2-L Interest and the Class
2-LS Interest. With respect to the Class MRI-3A1 Interest, the weighted average
of the Uncertificated Lower-Tier REMIC Pass-Through Rates for the Class 3-L
Interest and the Class 3-LS Interest. With respect to the Class
MRI-4A1 Interest, the weighted average of the Uncertificated Lower-Tier REMIC
Pass-Through Rates for the Class 4-L Interest and the Class 4-LS
Interest. With respect to the Class MRI-X-X-1 Interest, the Class
MRI-X-X-2 Interest, the Class MRI-X-X-3 Interest, the Class MRI-X-X-4 Interest,
the Class MRI-X-X-5 Interest and the Class MRI-X-X-6 Interest, the weighted
average (based on the Group Subordinate Amount for each Loan Group in Loan
Group
J) of the Uncertificated Lower-Tier REMIC Pass-Through Rates for the Class
1-LS
Interest and the Class 2-LS Interest. With respect to the Class
MRI-X-B-1 Interest, the Class MRI-X-B-2 Interest, the Class MRI-X-B-3 Interest,
the Class MRI-X-B-4 Interest, the Class MRI-X-B-5 Interest and the Class
MRI-X-B-6 Interest, the weighted average (based on the Group Subordinate Amount
for each Loan Group in Loan Group X) of the Uncertificated Lower-Tier REMIC
Pass-Through Rates for the Class 3-LS Interest and the Class 4-LS
Interest.
Undercollateralized
Amount: As defined in Section 5.02(b)(vii).
Undercollateralized
Group: As defined in Section 5.02(b)(vii).
Underwriter’s
Exemption: An exemption listed, and as amended by, Prohibited
Transaction Exemption 2007-05, 72 Fed. Reg. 13130 (March 20, 2007) and any
successor exemption.
Upper-Tier
Certificate Sub-Account: The sub-account of the Certificate
Account designated by the Securities Administrator pursuant to Section
3.09(h).
Upper-Tier
Interests: The Upper-Tier Regular Interests and the Class UR
Interest, which represents the sole class of residual interest in the Upper-Tier
REMIC.
Upper-Tier
Regular Interest: Any of the regular interests in the
Upper-Tier REMIC listed in the Preliminary Statement, the ownership of which
is
represented by the Certificates.
Upper-Tier
REMIC: As defined in the Preliminary Statement, the assets of
which consist of the Uncertificated Middle-Tier Regular Interests and such
amounts as shall be deemed held in the Upper-Tier Certificate
Sub-Account.
U.S.
Person: A citizen or resident of the United States, a
corporation or partnership (unless, in the case of a partnership, Treasury
Regulations are adopted that provide otherwise) created or organized in or
under
the laws of the United States, any state thereof or the District of Columbia,
including an entity treated as a corporation or partnership for federal income
tax purposes, an estate whose income is subject to United States federal income
tax regardless of its source, or a trust if a court within the United States
is
able to exercise primary supervision over the administration of such trust,
and
one or more such U.S. Persons have the authority to control all substantial
decisions of such trust (or, to the extent provided in applicable Treasury
Regulations, certain trusts in existence on August 20, 1996 which are eligible
to elect to be treated as U.S. Persons).
39
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) 98% of all Voting Rights shall be allocated to the
Holders of the Senior Certificates (other than the Class 2-A-R Certificate)
and
the Subordinate Certificates in proportion to the Certificate Balances of their
respective Certificates, (b) 1% of all Voting Rights shall be allocated to
the Holder of the Class 2-A-R Certificate and (c) 1% of all Voting
Rights shall be allocated to the Holders of the Class 3-A-4
Certificates.
Section
1.02 Interest
Calculations.
All
calculations of interest will be made on a 360-day year consisting of twelve
(12) 30-day months. All dollar amounts calculated hereunder shall be
rounded to the nearest xxxxx with one-half of one xxxxx being rounded
down.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
ORIGINAL
ISSUANCE OF CERTIFICATES
Section
2.01 Conveyance
of Mortgage
Loans.
(a) The
Depositor, concurrently with the execution and delivery hereof, hereby sells,
transfers, assigns, sets over and otherwise conveys to the Trustee on behalf
of
the Trust for the benefit of the Certificateholders, without recourse, all
the
right, title and interest of the Depositor in and to the Mortgage Loans and
the
related Mortgage Files, including all interest and principal received on or
with
respect to the Mortgage Loans (other than payments of principal and interest
due
and payable on the Mortgage Loans on or before the Cut-off Date) and the
Depositor’s rights under the Mortgage Loan Purchase Agreement, including the
rights of the Depositor as assignee of the Sponsor with respect to the Sponsor’s
rights under the Servicing Agreements. 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. It is
agreed and understood by the parties hereto that it is not intended that any
mortgage loan be included in the Trust that is a “High-Cost Home Loan” as
defined in any of (i) the New Jersey Home Ownership Act effective
November 27, 2003, (ii) the New Mexico Home Loan Protection Act
effective January 1, 2004, (iii) the Massachusetts Predatory Home Loan
Practices Act effective November 7, 2004 or (iv) the Indiana Home Loan
Practices Act, effective January 1, 2005.
(b)
In
connection with such transfer and assignment, the Depositor has delivered or
caused to be delivered to the Trustee, or a Custodian on behalf of the Trustee,
for the benefit of the Certificateholders, the following documents or
instruments with respect to each Mortgage Loan so assigned:
(i) the
original Mortgage Note, endorsed by manual or facsimile signature in the
following form: “Pay to the order of [__________], as trustee for
holders of Banc of America Funding Corporation Mortgage Pass-Through
Certificates, Series 20[__]-[_],
40
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 “[__________], as trustee for the holders of Banc of America Funding
Corporation Mortgage Pass-Through Certificates, Series 20[__]-[_]” (which
may be included in a blanket assignment or assignments), together with originals
of all interim recorded assignments of such mortgage or a copy of such interim
assignment certified by the applicable Servicer (which may be part of a blanket
certification) as being a true and complete copy of the original recorded
intervening assignments of Mortgage (each such assignment, when duly and validly
completed, to be in recordable form and sufficient to effect the assignment
of
and transfer to the assignee thereof, under the Mortgage to which the assignment
relates); provided
that, if the related Mortgage has not been returned from the applicable public
recording office, such Assignment of Mortgage may exclude the information to
be
provided by the recording office; and provided, further,
if the related
Mortgage has been recorded in the name of Mortgage Electronic Registration
Systems, Inc. (“MERS”)
or its designee, no Assignment of Mortgage in favor of the Trustee will be
required to be prepared or delivered and instead, the Master Servicer shall
enforce the obligations of the applicable Servicer to take all actions as are
necessary 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;
41
(vii)
for each
Mortgage Loan, if any, which is secured by a residential long-term lease, a
copy
of the lease with evidence of recording indicated thereon, or, if the lease
is
in the process of being recorded, a photocopy of the lease, certified by an
officer of the respective prior owner of such Mortgage Loan or by the applicable
title insurance company, closing/settlement/escrow agent or company or closing
attorney to be a true and correct copy of the lease transmitted for
recordation;
(viii)
the
original of any security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage; and
(ix)
for each
Mortgage Loan secured by Cooperative Stock, the originals of the following
documents or instruments:
(A) The
Cooperative Stock Certificate;
(B) The
stock
power executed in blank;
(C) The
executed Cooperative Lease;
(D) The
executed Recognition Agreement;
(E) The
executed assignment of Recognition Agreement, if any;
(F) The
executed UCC-1 financing statement with evidence of recording thereon;
and
(G) Executed
UCC-3 financing statements or other appropriate UCC financing statements
required by state law, evidencing a complete and unbroken line from the
mortgagee to the Trustee with evidence of recording thereon (or in a form
suitable for recordation).
provided,
however, that on
the Closing Date, with respect to item (iii), if an Assignment of Mortgage
is required to be recorded as set forth below, the Depositor has delivered
to
the Trustee or a Custodian on behalf of the Trustee, as the case may be, a
copy
of such Assignment of Mortgage in blank rather than in the name of the Trustee
and has caused the applicable Servicer to retain the completed Assignment of
Mortgage for recording as described below, unless such Mortgage has been
recorded in the name of MERS or its designee. In addition, if the
Depositor is unable to deliver or cause the delivery of any original Mortgage
Note due to the loss of such original Mortgage Note, the Depositor may deliver
a
copy of such Mortgage Note, together with a lost note affidavit, and shall
thereby be deemed to have satisfied the document delivery requirements of this
Section 2.01(b).
If
in
connection with any Mortgage Loans, the Depositor cannot deliver (A) the
Mortgage, (B) all interim recorded assignments, (C) all assumption,
modification, consolidation or extension agreements, if any, or (D) the
lender’s title policy, if any, (together with all riders thereto), if
applicable, satisfying the requirements of clause (ii), (iii),
(iv) or (v) above, respectively, concurrently with the execution and
delivery hereof because such document or documents have not been returned from
the applicable public recording office in the case of
42
clause (ii),
(iii) or (iv) above, or because the title policy, if applicable,
has not been delivered to any of the related Servicer, the Sponsor or the
Depositor, as applicable, by the applicable title insurer, if any, in the case
of clause (v) above, the Depositor shall promptly deliver or cause to be
delivered to the Trustee or a Custodian on behalf of the Trustee, as the case
may be, in the case of clause (ii), (iii) or (iv) above,
such Mortgage, such interim assignment or such assumption, modification,
consolidation or extension agreement, as the case may be, with evidence of
recording indicated thereon upon receipt thereof from the public recording
office, but in no event shall any such delivery of any such documents or
instruments be made later than one (1) year following the Closing Date,
unless, in the case of clause (ii), (iii) or (iv) above,
there has been a continuing delay at the applicable recording office or, in
the
case of clause (v), there has been a continuing delay at the applicable
insurer and the Depositor has delivered an Officer’s Certificate to such effect
to the Trustee. The Depositor shall forward or cause to be forwarded
to the Trustee or a Custodian, on behalf of the Trustee, as the case may be,
(1) from time to time additional original documents evidencing an
assumption or modification of a Mortgage Loan and (2) any other documents
required to be delivered by the Depositor, or the applicable Servicer to the
Trustee or a Custodian on the Trustee’s behalf, as the case may
be. In the event that the original Mortgage is not delivered and in
connection with the payment in full of the related Mortgage Loan the public
recording office requires the presentation of a “lost instruments affidavit and
indemnity” or any equivalent document, because only a copy of the Mortgage can
be delivered with the instrument of satisfaction or reconveyance, the Depositor
shall prepare, execute and deliver or cause to be prepared, executed and
delivered, on behalf of the Trust, such a document to the public recording
office.
As
promptly as practicable subsequent to such transfer and assignment, and in
any
event, within thirty (30) days thereafter, the Master Servicer shall (except
for
any Mortgage which has been recorded in the name of MERS or its designee)
enforce the obligations of the related Servicer pursuant to the related
Servicing Agreement to (I) cause each Assignment of Mortgage to be in
proper form for recording in the appropriate public office for real property
records within the time period required in the applicable Servicing Agreement
and (II) at the Depositor’s expense, cause to be delivered for recording in
the appropriate public office for real property records the Assignments of
the
Mortgages to the Trustee, except that, with respect to any Assignment of a
Mortgage as to which the related Servicer has not received the information
required to prepare such assignment in recordable form, such Servicer’s
obligation to do so and to deliver the same for such recording shall be as
soon
as practicable after receipt of such information and in accordance with the
applicable Servicing Agreement.
No
recording of an Assignment of Mortgage will be required in a state if either
(i) the Depositor furnishes to the Trustee and the Securities Administrator
an unqualified Opinion of Counsel reasonably acceptable to the Trustee and
the
Securities Administrator to the effect that recordation of such assignment
is
not necessary under applicable state law to preserve the Trustee’s interest in
the related Mortgage Loan against the claim of any subsequent transferee of
such
Mortgage Loan or any successor to, or creditor of, the Depositor or the
originator of such Mortgage Loan or (ii) the recordation of an Assignment
of Mortgage in such state is not required by either Rating Agency in order
to
obtain the initial ratings on the Certificates on the Closing
Date. Exhibit J
attached hereto sets forth the list of all states where recordation is required
by any Rating Agency to obtain the initial ratings of the
Certificates. The Securities Administrator
43
and
the
Trustee may rely and shall be protected in relying upon the information
contained in such Exhibit J.
In
the
case of Mortgage Loans that have been prepaid in full as of the Closing Date,
the Depositor, in lieu of delivering the above documents to the Trustee, or
a
Custodian on the Trustee’s behalf, will cause the applicable Servicer to remit
to the Master Servicer for deposit in the Master Servicer Custodial Account
the
portion of such payment that is required to be deposited in the such account
pursuant to Section 3.09.
Section
2.02 Acceptance
by the Trustee or
Custodian of the Mortgage Loans.
Subject
to the provisions of the following paragraph, the Trustee declares that it,
or a
Custodian as its agent, will hold the documents referred to in Section 2.01 and
the other documents delivered to it or a Custodian as its agent, as the case
may
be, constituting the Mortgage Files, and that it will hold such other assets
as
are included in the Trust Estate delivered to it, in trust for the exclusive
use
and benefit of all present and future Certificateholders. Upon execution and
delivery of this document, the Trustee shall deliver or cause a Custodian to
deliver to the Depositor and the Master Servicer a certification in the form
attached hereto as Exhibit K (the
“Initial
Certification”) to the effect that, except as may be specified in a list
of exceptions attached thereto, such Person has received the original Mortgage
Note relating to each of the Mortgage Loans listed on the Mortgage Loan
Schedule.
Within
90 days after the execution and delivery of this Agreement, the Trustee
shall review, or cause a Custodian, on behalf of the Trustee, to review, the
Mortgage Files in such Person’s possession, and shall deliver to the Depositor
and the Master Servicer a certification in the form attached hereto as Exhibit L (the
“Final
Certification”) to the effect that, as to each Mortgage Loan listed in
the Mortgage Loan Schedule, except as may be specified in a list of exceptions
attached to such Final Certification, such Mortgage File contains all of the
items required to be delivered pursuant to Section 2.01(b).
In performing any such review, the Trustee or a Custodian, as the case may
be,
may conclusively rely on the purported genuineness of any such document and
any
signature thereon.
If,
in
the course of such review, the Trustee or a Custodian finds any document
constituting a part of a Mortgage File which does not meet the requirements
of
Section 2.01 or
is omitted from such Mortgage File or if the Depositor, the Master Servicer,
the
Trustee, a Custodian or the Securities Administrator discovers a breach by
a
Servicer, the Sponsor or the Depositor of any representation, warranty or
covenant under the Servicing Agreements, the Mortgage Loan Purchase Agreement
or
this Agreement, as the case may be, in respect of any Mortgage Loan and such
breach materially adversely affects the interest of the Certificateholders
in
the related Mortgage Loan (provided that any such breach
that causes the Mortgage Loan not to be a “qualified mortgage” within the
meaning of Section 860G(a)(3) of the Code shall be deemed to materially and
adversely affect the interests of the Certificateholders), then such party
shall
promptly so notify the Master Servicer, the Sponsor, such Servicer, the
Securities Administrator, the Trustee and the Depositor of such failure to
meet
the requirements of Section 2.01 or
of such breach and request that the applicable Servicer, the Sponsor or the
Depositor, as applicable, deliver such missing documentation or cure such defect
or breach within 90 days of its discovery or its receipt of notice of any such
failure to meet the
44
requirements
of Section 2.01 or
of such breach. If the Trustee receives written notice that the
Depositor, the Sponsor or the applicable Servicer, as the case may be, has
not
delivered such missing document or cured such defect or breach in all material
respects during such period, the Trustee, on behalf of the Trust, shall enforce
the applicable Servicer’s, the Sponsor’s or the Depositor’s obligation, as the
case may be, under the applicable Servicing Agreement, the Mortgage Loan
Purchase Agreement or this Agreement, as the case may be, and cause the
applicable Servicer, the Sponsor or the Depositor, as the case may be, to either
(a) substitute for the related Mortgage Loan a Substitute Mortgage Loan,
which substitution shall be accomplished in the manner and subject to the
conditions set forth below or (b) purchase such Mortgage Loan from the
Trust at the Purchase Price for such Mortgage Loan; provided, however, that in no
event shall such a substitution occur more than two years from the Closing
Date;
provided, further, that
such substitution or repurchase must occur within 90 days of when such defect
was discovered if such defect will cause the Mortgage Loan not to be a
“qualified mortgage” within the meaning of Section 860G(a)(3) of the
Code.
Notwithstanding
any contrary provision of this Agreement, no substitution pursuant to this
Section 2.02
shall be made more than 90 days after the Closing Date unless the Depositor
delivers to the Securities Administrator an Opinion of Counsel, which Opinion
of
Counsel shall not be at the expense of any of the Trustee, the Securities
Administrator or the Trust Estate, addressed to the Trustee and the Securities
Administrator, to the effect that such substitution will not (i) result in
the imposition of the tax on “prohibited transactions” on any REMIC created
hereunder or contributions after the Start-up Day, as defined in
Sections 860F(a)(2) and 860G(d) of the Code, respectively or
(ii) cause any REMIC created hereunder to fail to qualify as a REMIC at any
time that any Certificates are outstanding.
It
is
understood that the scope of the Trustee’s review (or a Custodian’s review on
its behalf) of the Mortgage Files is limited solely to confirming that the
documents listed in Section 2.01
have been received and further confirming that any and all documents delivered
pursuant to Section 2.01
appear on their face to have been executed and relate to the applicable Mortgage
Loans identified in the related Mortgage Loan Schedule based solely upon the
review of items (i) and (xi) in the definition of Mortgage Loan
Schedule. Neither the Trustee nor any Custodian shall have any
responsibility for determining whether any document is valid and binding,
whether the text of any assignment or endorsement is in proper or recordable
form, whether any document has been recorded in accordance with the requirements
of any applicable jurisdiction, or whether a blanket assignment is permitted
in
any applicable jurisdiction.
If
the
Trustee receives written notice from the Depositor, the Master Servicer or
the
Securities Administrator of a breach of any representation or warranty of a
related Servicer or the Sponsor, the Trustee, on behalf of the Trust, shall
enforce the rights of the Trust under the applicable Servicing Agreement, the
Mortgage Loan Purchase Agreement and this Agreement for the benefit of the
Certificateholders. If the Trustee receives written notice from the
Depositor, the Master Servicer or the Securities Administrator of a breach
of
the representations or warranties with respect to a Mortgage Loan set forth
in a
Servicing Agreement, the Trustee, on behalf of the Trust, shall enforce the
right of the Trust to be indemnified for such breach of representation or
warranty. In addition, if the Trustee receives written notice from
the Depositor, the Master Servicer or the Securities Administrator of a breach
of a representation with respect to
45
a
Mortgage Loan set forth in clauses (k), (o) or (p) of paragraph 3
or clauses (f), (nn) or (oo) of paragraph 4 of the Mortgage Loan Purchase
Agreement that occurs as a result of a violation of an applicable predatory
or
abusive lending law, the Trustee, on behalf of the Trust, shall enforce the
right of the Trust to reimbursement by the Sponsor for all costs or damages
incurred by the Trust as a result of the violation of such law (such amount,
the
“Reimbursement
Amount”), but in the case of a breach of a representation set forth in
clauses (k) or (o) of paragraph 3 of the Mortgage Loan Purchase
Agreement, 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, the Sponsor or the Depositor
to cure or to repurchase (or to substitute for) any Mortgage Loan as to which
a
document is missing, a material defect in a constituent document exists or
as to
which such a breach has occurred and is continuing shall constitute the sole
remedy against a Servicer, the Sponsor or the Depositor in respect of such
omission, defect or breach available to the Trustee on behalf of the Trust
and
the Certificateholders.
With
respect to the representations and warranties relating to the Mortgage Loans
set
forth in the Mortgage Loan Purchase Agreement that are made to the best of
the
Sponsor’s knowledge or as to which the Sponsor had no knowledge, if it is
discovered by the Depositor, the Master Servicer or the Trustee that the
substance of such representation or warranty is inaccurate and such inaccuracy
materially and adversely affects the interest of the Certificateholders in
the
related Mortgage Loan then, notwithstanding the Sponsor’s lack of knowledge with
respect to the substance of such representation or warranty being inaccurate
at
the time the representation or warranty was made, such inaccuracy shall be
deemed a breach of the applicable representation or warranty.
It
is
understood and agreed that the representations and warranties relating to the
Mortgage Loans set forth in the Mortgage Loan Purchase Agreement shall survive
delivery of the Mortgage Files to the Trustee or a Custodian on the Trustee’s
behalf and shall inure to the benefit of the Certificateholders notwithstanding
any restrictive or qualified endorsement or assignment. It is
understood and agreed that the obligations of the Sponsor set forth in this
Section 2.02 to
cure, substitute for or repurchase a Mortgage Loan pursuant to the Mortgage
Loan
Purchase Agreement constitute the sole remedies available to the
Certificateholders and to the Trustee on their behalf respecting a breach of
the
representations and warranties contained in the Mortgage Loan Purchase
Agreement.
The
representations and warranties of each Servicer 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 Sponsor under the Mortgage
Loan Purchase Agreement, the only right or remedy of the Trustee or of any
Certificateholder shall be the Trustee’s right, on behalf of the Trust, to
enforce the obligations of the applicable Servicer under any applicable
representation or warranty made by it. It is hereby acknowledged that
the Sponsor shall have no obligation or liability with respect to any breach
of
a representation or warranty made by it with respect to the Mortgage Loans
if
the fact, condition or event constituting such breach also
46
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. It is hereby further acknowledged that the Depositor shall
have no obligation or liability with respect to any breach of any representation
or warranty with respect to the Mortgage Loans (except as set forth in Section 2.04)
under any circumstances.
With
respect to each Substitute Mortgage Loan the applicable Servicer, the Sponsor
or
the Depositor, as the case may be, shall deliver to the Trustee (or a Custodian
on behalf of the Trustee), for the benefit of the Certificateholders, the
documents and agreements required by Section 2.01,
with the Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01. No
substitution is permitted to be made in any calendar month after the
Determination Date for such month. Monthly Payments due with respect
to any such Substitute Mortgage Loan in the month of substitution shall not
be
part of the Trust Estate. For the month of substitution,
distributions to Certificateholders will include the Monthly Payment due for
such month on any Defective Mortgage Loan for which the Depositor, the Sponsor
or a Servicer has substituted a Substitute Mortgage Loan.
The
Master Servicer shall amend the Mortgage Loan Schedule for the benefit of the
Certificateholders to reflect the removal of each Mortgage Loan that has become
a Defective Mortgage Loan and the substitution of the Substitute Mortgage Loan
or Loans and the Master Servicer shall deliver the amended Mortgage Loan
Schedule to the Securities Administrator, the Trustee and any
Custodian. Upon such substitution of a Mortgage Loan by the
Depositor, the Sponsor or a Servicer, each Substitute Mortgage Loan shall be
subject to the terms of this Agreement in all respects, and the Depositor or
the
Sponsor, as the case may be, shall be deemed to have made to the Trustee with
respect to such Substitute Mortgage Loan, as of the date of substitution, the
representations and warranties made pursuant to paragraph 4 of the Mortgage
Loan Purchase Agreement and the applicable Servicer shall be deemed to have
made
to the Trustee with respect to such Substitute Mortgage Loan, as of the date
of
substitution, the mortgage loan representations and warranties made pursuant
to
the applicable Servicing Agreement. Upon any such substitution and the deposit
to the Master Servicer Custodial Account of any required Substitution Adjustment
Amount (as described in the next paragraph) and receipt by the Trustee of a
Request for Release, the Trustee shall release, or shall direct a Custodian
to
release, the Mortgage File relating to such Defective Mortgage Loan to
applicable Person and shall execute and deliver at such Person’s direction such
instruments of transfer or assignment prepared by such Person, without recourse,
as shall be necessary to vest title in such Person or its designee to the
Trustee’s interest in any Defective Mortgage Loan substituted for pursuant to
this Section 2.02.
For
any
month in which the Depositor, the Sponsor or a Servicer substitutes one or
more
Substitute Mortgage Loans for one or more Defective Mortgage Loans, the amount
(if any) by which the aggregate principal balance of all such Substitute
Mortgage Loans substituted by such Person in a Loan Group as of the date of
substitution is less than the aggregate Stated Principal Balance of all such
Defective Mortgage Loans in a Loan Group substituted by such Person (after
application of the principal portion of the Monthly Payments due in the month
of
substitution) (the “Substitution
Adjustment Amount” for such Loan Group) plus an
amount equal
to the
47
aggregate
of any unreimbursed Advances and Capitalization Reimbursement Amounts with
respect to such Defective Mortgage Loans shall be remitted by such Person to
the
Master Servicer for deposit to the Master Servicer Custodial Account on or
before the [__]th
day of
the month succeeding the calendar month during which the related Mortgage Loan
is required to be purchased or replaced hereunder.
The
Trustee shall retain or shall cause a Custodian to retain, as applicable,
possession and custody of each Mortgage File in accordance with and subject
to
the terms and conditions set forth herein. The Master Servicer shall cause
to be
promptly delivered to the Trustee or a Custodian on behalf of the Trustee,
as
the case may be, upon the execution or, in the case of documents requiring
recording, receipt thereof, the originals of such other documents or instruments
constituting the Mortgage File as come into the Master Servicer’s possession
from time to time.
Neither
the Trustee nor any Custodian shall be under any duty or obligation (i) to
inspect, review or examine any such documents, instruments, certificates or
other papers to determine that they are genuine, enforceable, or appropriate
for
the represented purpose or that they are other than what they purport to be
on
their face or (ii) to determine whether any Mortgage File should include
any of the documents specified in Section 2.01(b)(iv),
(vi),
(vii),
(viii)
and (ix). In
connection with making the certifications required hereunder, to the extent
a
title search or opinion of counsel has been provided in lieu of a title policy
for any Mortgage Loan, the Trustee or a Custodian on its behalf, as applicable,
shall only be responsible for confirming that a title search or opinion of
counsel has been provided for such Mortgage Loan.
Section
2.03 Representations,
Warranties
and Covenants of the Master Servicer.
The
Master Servicer hereby makes the following representations and warranties to
the
Depositor, the Securities Administrator and the Trustee, as of the Closing
Date:
(i) The
Master Servicer is a [_____] duly organized and validly existing in good
standing under the laws of the [__________] and has all licenses necessary
to
carry on its business as now being conducted and is licensed, qualified and
in
good standing in each of the states where a Mortgaged Property securing a
Mortgage Loan is located if the laws of such state require licensing or
qualification in order to conduct business of the type conducted by the Master
Servicer. The Master Servicer has power and authority to execute and
deliver this Agreement and to perform in accordance herewith; the execution,
delivery and performance of this Agreement (including all instruments of
transfer to be delivered pursuant to this Agreement) by the Master Servicer
and
the consummation of the transactions contemplated hereby have been duly and
validly authorized. This Agreement, assuming due authorization,
execution and delivery by the other parties hereto, evidences the valid, binding
and enforceable obligation of the Master Servicer, subject to applicable law
except as enforceability may be limited by (A) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other similar laws
affecting the enforcement of the rights of creditors and (B) general
principles of equity, whether enforcement is sought in a proceeding in equity
or
at law. All requisite corporate action has been taken by the Master
Servicer to make this Agreement valid and binding upon the Master Servicer
in
accordance with its terms.
48
(ii) No
consent, approval, authorization or order is required for the transactions
contemplated by this Agreement from any court, governmental agency or body,
or
federal or state regulatory authority having jurisdiction over the Master
Servicer is required or, if required, such consent, approval, authorization
or
order has been or will, prior to the Closing Date, be obtained.
(iii) The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Master Servicer and will not result in the
breach of any term or provision of the [______] or [_____] of the Master
Servicer or result in the breach of any term or provision of, or conflict with
or constitute a default under or result in the acceleration of any obligation
under, any agreement, indenture or loan or credit agreement or other instrument
to which the Master Servicer or its property is subject, or result in the
violation of any law, rule, regulation, order, judgment or decree to which
the
Master Servicer or its property is subject.
(iv) There
is
no action, suit, proceeding or investigation pending or, to the best knowledge
of the Master Servicer, threatened against the Master Servicer which, either
individually or in the aggregate, would result in any material adverse change
in
the business, operations, financial condition, properties or assets of the
Master Servicer, or in any material impairment of the right or ability of the
Master Servicer to carry on its business substantially as now conducted or
which
would draw into question the validity of this Agreement or the Mortgage Loans
or
of any action taken or to be taken in connection with the obligations of the
Master Servicer contemplated herein, or which would materially impair the
ability of the Master Servicer to perform under the terms of this
Agreement.
The
representations and warranties made pursuant to this Section 2.03
shall survive delivery of the respective Mortgage Files to the Trustee or a
Custodian on the Trustee’s behalf and shall inure to the benefit of the
Certificateholders.
Section
2.04 Representations
and
Warranties of the Depositor as to the Mortgage Loans.
The
Depositor hereby represents and warrants to the Trustee with respect to the
Mortgage Loans or each Mortgage Loan, as the case may be, as of the date hereof
or such other date set forth herein that:
(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.
49
(ii) As
of the
Closing Date, the Depositor has transferred all right, title and interest in
the
Mortgage Loans to the Trustee on behalf of the Trust.
(iii) As
of the
Closing Date, the Depositor has not transferred the Mortgage Loans to the
Trustee on behalf of the Trust with any intent to hinder, delay or defraud
any
of its creditors.
(iv) Each
Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G(a)(3)
of the Code and Treasury Regulation section 1.860G-2.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 2.04
shall survive delivery of the respective Mortgage Files to the Trustee or a
Custodian on the Trustee’s behalf and shall inure to the benefit of the
Certificateholders.
Upon
discovery by any of the Depositor, the Master Servicer, the Securities
Administrator or the Trustee that any of the representations and warranties
set
forth in this Section 2.04 is
not accurate (referred to herein as a “breach”)
and that such breach materially and adversely affects the interests of the
Certificateholders in the related Mortgage Loan, the party discovering such
breach shall give prompt written notice to the other parties; provided that a breach of
the
representation that each Mortgage Loan is a “qualified mortgage” within the
meaning of Section 860G(a)(3) of the Code shall be deemed to materially and
adversely affect the interests of the Certificateholders. Within 90
days of its discovery or its receipt of notice of any such breach, the Depositor
shall cure such breach in all material respects or shall either
(i) repurchase the Mortgage Loan or any property acquired in respect
thereof from the Trustee at a price equal to the Purchase Price or (ii) if
within two years of the Closing Date, substitute for such Mortgage Loan in
the
manner described in Section 2.02;
provided
that if the
breach relates to the representation that each Mortgage Loan is a “qualified
mortgage” as defined in Section 860G(a)(3) of the Code, any such repurchase
or substitution must occur within 90 days from the date the breach was
discovered. The Purchase Price of any repurchase described in this
paragraph and the Substitution Adjustment Amount, if any, shall be remitted
to
the Master Servicer for deposit to the Master Servicer Custodial
Account. It is understood and agreed that, except with respect to the
second preceding sentence, the obligation of the Depositor to repurchase or
substitute for any Mortgage Loan or Mortgaged Property as to which such a breach
has occurred and is continuing shall constitute the sole remedy respecting
such
breach available to Certificateholders, or to the Trust and the Trustee on
behalf of Certificateholders, and such obligation shall survive until
termination of the Trust hereunder.
Section
2.05 Designation
of Interests in
the REMICs.
The
Depositor hereby designates the Upper-Tier Regular Interests as “regular
interests” and the Class UR Interest as the single class of “residual
interest” in the Upper-Tier REMIC for the purposes of Code
Sections 860G(a)(1) and 860G(a)(2), respectively. The Depositor
hereby further designates (i) the Uncertificated Middle-Tier Regular
Interests as classes of “regular interests” and the Class MR Interest as
the single class of “residual interest” in the Middle-Tier REMIC for the
purposes of Code Sections 860G(a)(1) and 860G(a)(2), respectively, and
(ii) the Uncertificated Lower-Tier Regular Interests as classes of “regular
interests” and the Class LR
50
Interest
as the single class of “residual interest” in the Lower-Tier REMIC for the
purposes of Code Sections 860G(a)(1) and 860G(a)(2),
respectively.
Section
2.06 Designation
of Start-up
Day.
The
Closing Date is hereby designated as the “start-up day” of each of the
Upper-Tier REMIC, the Middle-Tier REMIC and the Lower-Tier REMIC within the
meaning of Section 860G(a)(9) of the Code.
Section
2.07 REMIC
Certificate Maturity
Date.
Solely
for purposes of satisfying Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations, the “latest possible maturity date” of the regular interests in the
Upper-Tier REMIC, the Middle-Tier REMIC and the Lower-Tier REMIC is the
Distribution Date in the month following the maturity date for the Mortgage
Loan
with the latest maturity date.
Section
2.08 Execution
and Delivery of
Certificates.
The
Securities Administrator (i) acknowledges the issuance of and hereby
declares that it holds the Uncertificated Lower-Tier Regular Interests on behalf
of the Middle-Tier REMIC and the Certificateholders and that it holds the
Uncertificated Middle-Tier Regular Interests on behalf of the Upper-Tier REMIC
and the Certificateholders, and (ii) has executed and delivered to or upon
the order of the Depositor, in exchange for the Mortgage Loans, Uncertificated
Lower-Tier Interests, together with all other assets included in the definition
of “Trust Estate,” receipt of which is hereby acknowledged, Certificates in
authorized Denominations which, together with the Uncertificated Lower-Tier
Interests and the Uncertificated Middle-Tier Interests, evidence ownership
of
the entire Trust Estate.
Section
2.09 Establishment
of the
Trust.
The
Depositor does hereby establish, pursuant to the further provisions of this
Agreement and the laws of the State of New York, an express trust to be known,
for convenience, as “Banc of America Funding 20[__]-[_] Trust” and does hereby
appoint [__________] as Trustee in accordance with the provisions of this
Agreement.
Section
2.10 Purpose
and Powers of the
Trust.
The
purpose of the common law trust, as created hereunder, is to engage in the
following activities:
(a) to
acquire and hold the Mortgage Loans and the other assets of the Trust Estate
and
the proceeds therefrom;
(b) to
issue
the Certificates sold to the Depositor in exchange for the Mortgage
Loans;
(c) to
make
payments on the Certificates;
51
(d) to
engage
in those activities that are necessary, suitable or convenient to accomplish
the
foregoing or are incidental thereto or connected therewith; and
(e) subject
to compliance with this Agreement, to engage in such other activities as may
be
required in connection with conservation of the Trust Estate and the making
of
distributions to the Certificateholders.
The
trust
is hereby authorized to engage in the foregoing activities. Neither
the Trustee nor the Securities Administrator shall cause the trust to engage
in
any activity other than in connection with the foregoing or other than as
required or authorized by the terms of this Agreement (or those ancillary
thereto) while any Certificate is outstanding, and this Section 2.10 may
not be amended, without the consent of the Certificateholders evidencing 51%
or
more of the aggregate voting rights of the Certificates.
ARTICLE
III
ADMINISTRATION
AND MASTER SERVICING
OF
MORTGAGE LOANS
Section
3.01 Master
Servicing of the
Mortgage Loans.
For
and
on behalf of the Certificateholders, the Master Servicer shall supervise,
monitor and oversee the obligations of the Servicers to service and administer
their respective Mortgage Loans in accordance with the terms of the applicable
Servicing Agreement and shall have full power and authority to do any and all
things which it may deem necessary or desirable in connection with such master
servicing and administration. In performing its obligations
hereunder, the Master Servicer shall act in a manner consistent with this
Agreement, subject to the prior sentence, and with Customary Servicing
Procedures. Furthermore, the Master Servicer shall oversee and
consult with each Servicer as necessary from time-to-time to carry out the
Master Servicer’s obligations hereunder, shall receive, review and evaluate all
reports, information and other data provided to the Master Servicer by each
Servicer and shall cause each Servicer to perform and observe the covenants,
obligations and conditions to be performed or observed by such Servicer under
the applicable Servicing Agreement. The Master Servicer shall
independently and separately monitor each Servicer’s servicing activities with
respect to each related Mortgage Loan, reconcile the results of such monitoring
with such information provided in the previous sentence on a monthly basis
and
coordinate corrective adjustments to the Servicers’ and the Master Servicer’s
records, and based on such reconciled and corrected information, prepare the
Master Servicer’s Certificate and any other information and statements required
hereunder. The Master Servicer shall reconcile the results of its
Mortgage Loan monitoring with the actual remittances of the Servicers to the
Master Servicer Custodial Account pursuant to the applicable Servicing
Agreements.
Continuously
from the date hereof until the termination of the Trust, the Master Servicer
shall enforce the obligations of the Servicers to collect all payments due
under
the terms and provisions of the Mortgage Loans when the same shall become due
and payable to the extent such procedures shall be consistent with the
applicable Servicing Agreement.
52
The
relationship of the Master Servicer (and of any successor to the Master Servicer
as master servicer under this Agreement) to the Trustee and the Securities
Administrator under this Agreement is intended by the parties to be that of
an
independent contractor and not that of a joint venturer, partner or
agent.
Section
3.02 Monitoring
of
Servicers.
(a) The
Master Servicer shall be responsible for reporting to the Trustee, the
Securities Administrator and the Depositor the compliance by each Servicer
with
its duties under the related Servicing Agreement. In the review of
each Servicer’s activities, the Master Servicer may rely upon an officer’s
certificate of the Servicer with regard to such Servicer’s compliance with the
terms of its Servicing Agreement. In the event that the Master
Servicer, in its judgment, determines that a Servicer should be terminated
in
accordance with its Servicing Agreement, or that a notice should be sent
pursuant to such Servicing Agreement with respect to the occurrence of an event
that, unless cured, would constitute grounds for such termination, the Master
Servicer shall notify the Depositor, the Securities Administrator and the
Trustee thereof and the Master Servicer shall issue such notice or take such
other action as it deems appropriate.
(b) The
Master Servicer, for the benefit of the Trust and the Certificateholders, shall
enforce the obligations of each Servicer under the related Servicing Agreement,
and shall, in the event that a Servicer fails to perform its obligations in
accordance with the related Servicing Agreement, subject to the preceding
paragraph, terminate the rights and obligations of such Servicer thereunder
and
act as successor Servicer of the related Mortgage Loans under the applicable
Servicing Agreement or cause the Trustee to enter into a new Servicing Agreement
with a successor Servicer selected by the Master Servicer; provided, however, it is
understood and acknowledged by the parties hereto that there will be a period
of
transition (not to exceed 90 days) before the actual servicing functions
can be fully transferred to such successor Servicer. Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of Servicing Agreements and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time as the Master Servicer, in its good faith business judgment, would require
were it the owner of the related Mortgage Loans. The Master Servicer
shall pay the costs of such enforcement at its own expense, and shall be
reimbursed therefor only (i) from a general recovery resulting from such
enforcement to the extent, if any, that such recovery exceeds all amounts due
in
respect of the related Mortgage Loans or (ii) from a specific recovery of
costs, expenses or attorneys fees against the party whom such enforcement is
directed, provided that
the Master Servicer and the Trustee, as applicable, shall not be required to
prosecute or defend any legal action except to the extent that the Master
Servicer or the Trustee, as applicable, shall have received reasonable indemnity
for its costs and expenses in pursuing such action.
(c) To
the
extent that the costs and expenses of the Master Servicer or the Trustee, as
applicable, related to any termination of a Servicer, appointment of a successor
Servicer or the transfer and assumption of servicing by the Master Servicer
or
the Trustee, as applicable, with respect to any Servicing Agreement (including,
without limitation, (i) all legal costs and expenses and all due diligence
costs and expenses associated with an evaluation of the potential termination
of
the Servicer as a result of an event of default by such Servicer under the
related Servicing Agreement and (ii) all costs and expenses associated with
the complete transfer of
53
servicing,
including all servicing files and all servicing data and the completion,
correction or manipulation of such servicing data as may be required by the
successor Servicer to correct any errors or insufficiencies in the servicing
data or otherwise to enable the successor Servicer to service the Mortgage
Loans
in accordance with the related Servicing Agreement) are not fully and timely
reimbursed by the terminated Servicer, the Master Servicer or the Trustee,
as
applicable, shall be entitled to reimbursement of such costs and expenses from
the Master Servicer Custodial Account; provided that if such
servicing transfer costs are ultimately reimbursed by the terminated Servicer,
then the Master Servicer or the Trustee, as applicable, shall remit such amounts
that are reimbursed by the terminated Servicer to the Master Servicer Custodial
Account.
(d) The
Master Servicer shall require each Servicer to comply with the remittance
requirements and other obligations set forth in the related Servicing
Agreement.
(e) If
the
Master Servicer acts as Servicer, it will not assume liability for the
representations and warranties of the Servicer, if any, that it
replaces.
(f) Subject
to the conditions set forth in this Section 3.02(f),
the Master Servicer is permitted to utilize one or more Subcontractors to
perform certain of its obligations hereunder. The Master Servicer
shall promptly upon request provide to the Depositor a written description
(in
form and substance satisfactory to the Depositor) of the role and function
of
each Subcontractor utilized by the Master Servicer, specifying (i) the
identity of each such Subcontractor that is a Servicing Function Participant
and
(ii) which elements of the Servicing Criteria will be addressed in
Assessments of Compliance provided by each Servicing Function
Participant. As a condition to the utilization by the Master Servicer
of any Servicing Function Participant, the Master Servicer shall cause any
such
Servicing Function Participant for the benefit of the Depositor to comply with
the provisions of Section 3.21 of
this Agreement to the same extent as if such Servicing Function Participant
were
the Master Servicer. The Master Servicer shall be responsible for
obtaining from each such Servicing Function Participant and delivering to the
applicable Persons any Assessment of Compliance and related Attestation Report
required to be delivered by such Servicing Function Participant under Section 3.21, in
each case as and when required to be delivered.
Notwithstanding
the foregoing, if the Master Servicer engages a Subcontractor in connection
with
the performance of any of its duties under this Agreement, the Master Servicer
shall be responsible for determining whether such Subcontractor is an Additional
Servicer.
The
Master Servicer shall indemnify the Depositor, the Sponsor, the
Trustee, the Custodian and the Securities Administrator and any of their
directors, officers, employees or agents and hold them harmless against any
and
all claims, losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and any other costs, fees
and
expenses that any of them may sustain in any way related to a breach of the
Master Servicer’s obligation set forth in the preceding paragraph or the failure
of the Master Servicer to perform any of its obligations under this Section 3.02(f),
Section 3.20,
Section 3.21 or
Section 3.22.
54
Section
3.03 Fidelity
Bond; Errors and
Omissions Insurance.
The
Master Servicer shall maintain, at its own expense, a blanket fidelity bond
and
an errors and omissions insurance policy, with broad coverage on all officers,
employees or other persons involved in the performance of its obligations as
Master Servicer hereunder. These policies must insure the Master
Servicer against losses resulting from dishonest or fraudulent acts committed
by
the Master Servicer’s personnel, any employees of outside firms that provide
data processing services for the Master Servicer, and temporary contract
employees or student interns. No provision of this Section 3.03
requiring such fidelity bond and errors and omissions insurance shall diminish
or relieve the Master Servicer from its duties and obligations as set forth
in
this Agreement. The minimum coverage under any such bond and
insurance policy shall be at least equal to the corresponding amounts required
by Xxxxxx Xxx in the Xxxxxx Mae Servicing Guide or by Xxxxxxx Mac in the Xxxxxxx
Xxx Xxxxxxx’ & Servicers’ Guide, as amended or restated from time to time,
or in an amount as may be permitted to the Master Servicer by express waiver
of
Xxxxxx Xxx or Xxxxxxx Mac. In the event that any such policy or bond
ceases to be in effect, the Master Servicer shall obtain a comparable
replacement policy or bond from an insurer or issuer, meeting the requirements
set forth above as of the date of such replacement.
Section
3.04 Access
to Certain
Documentation.
The
Master Servicer shall provide, and the Master Servicer shall cause each Servicer
to provide in accordance with the related Servicing Agreement, to the OCC,
the
OTS, the FDIC and to comparable regulatory authorities supervising Holders
of
Certificates and the examiners and supervisory agents of the OCC, the OTS,
the
FDIC and such other authorities, access to the documentation required by
applicable regulations of the OCC, the OTS, the FDIC and such other authorities
with respect to the Mortgage Loans. Such access shall be afforded
without charge, but only upon reasonable and prior written request and during
normal business hours at the offices designated by the Master Servicer and
the
related Servicer. In fulfilling such request for access, the Master
Servicer shall not be responsible to determine the sufficiency of any
information provided by such Servicer. Nothing in this Section 3.04
shall limit the obligation of the Master Servicer and the related Servicer
to
observe any applicable law and the failure of the Master Servicer or the related
Servicer to provide access as provided in this Section 3.04 as
a result of such obligation shall not constitute a breach of this Section 3.04.
Section
3.05 Maintenance
of Primary
Mortgage Insurance Policy; Claims.
(a) The
Master Servicer shall not take, or permit any Servicer (to the extent such
action is prohibited under the applicable Servicing Agreement) to take, any
action that would result in noncoverage under any applicable Primary Mortgage
Insurance Policy of any loss which, but for the actions of the Master Servicer
or such Servicer, would have been covered thereunder. The Master
Servicer shall use its best reasonable efforts to cause each Servicer (to the
extent required under the related Servicing Agreement) to keep in force and
effect (to the extent that the Mortgage Loan requires the Mortgagor to maintain
such insurance), primary mortgage insurance applicable to each Mortgage Loan
in
accordance with the provisions of this Agreement and the related Servicing
Agreement, as applicable. The Master Servicer shall not, and shall
not permit any Servicer (to the extent required under the related Servicing
Agreement) to, cancel or refuse to renew any such Primary Mortgage Insurance
Policy that is in effect at the
55
date
of
the initial issuance of the Mortgage Note and is required to be kept in force
hereunder except in accordance with the provisions of this Agreement and the
related Servicing Agreement, as applicable.
(b) The
Master Servicer agrees to present, or to cause each Servicer (to the extent
required under the related Servicing Agreement) to present, on behalf of the
Trust, the Trustee and the Certificateholders, claims to the insurer under
any
Primary Mortgage Insurance Policies and, in this regard, to take such reasonable
action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policies respecting defaulted Mortgage Loans. Pursuant to
Sections 3.08
and 3.09, any
amounts collected by the Master Servicer or any Servicer under any Primary
Mortgage Insurance Policies shall be deposited in the Master Servicer Custodial
Account, subject to withdrawal pursuant to Section 3.11.
Section
3.06 Rights
of the Depositor, the
Securities Administrator and the Trustee in Respect of the Master
Servicer.
The
Depositor may, but is not obligated to, enforce the obligations of the Master
Servicer hereunder and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of the Master Servicer hereunder
and in connection with any such defaulted obligation to exercise the related
rights of the Master Servicer hereunder; provided that the Master
Servicer shall not be relieved of any of its obligations hereunder by virtue
of
such performance by the Depositor or its designee. None of the
Securities Administrator, the Trustee or the Depositor shall have any
responsibility or liability for any action or failure to act by the Master
Servicer and the Securities Administrator, the Trustee or the Depositor shall
not be obligated to supervise the performance of the Master Servicer hereunder
or otherwise.
Section
3.07 Trustee
to Act as Master
Servicer.
(a) In
the
event the Master Servicer or any successor master servicer shall for any reason
no longer be the Master Servicer hereunder (including by reason of an Event
of
Default), the Trustee as trustee hereunder shall within 90 days of such
time, assume, if it so elects, or shall appoint a successor Master Servicer
to
assume, all of the rights and obligations of the Master Servicer hereunder
arising thereafter. Any such assumption shall be subject to Sections 7.02
and 8.05.
(b) The
predecessor Master Servicer at its expense shall, upon request of the Trustee,
deliver to the assuming party all master servicing documents and records and
an
accounting of amounts collected or held by the Master Servicer, and shall
transfer control of the Master Servicer Custodial Account and any investment
accounts to the successor Master Servicer, and otherwise use its best efforts
to
effect the orderly and efficient transfer of its rights and duties as Master
Servicer hereunder to the assuming party. The Trustee shall be
entitled to be reimbursed from the predecessor Master Servicer (or the Trust
if
the predecessor Master Servicer is unable to fulfill such obligations) for
all
Master Servicing Transfer Costs.
56
Section
3.08 Servicer
Custodial Accounts
and Escrow Accounts.
(a) The
Master Servicer shall enforce the obligation of each Servicer to establish
and
maintain a Servicer Custodial Account in accordance with the applicable
Servicing Agreement, with records to be kept with respect thereto on a loan
by
loan basis, into which accounts shall be deposited within 48 hours (or as
of such other time specified in the related Servicing Agreement) of receipt
all
collections of principal and interest on any Mortgage Loan and all collections
with respect to any REO Property received by a Servicer, including Principal
Prepayments, Insurance Proceeds, Liquidation Proceeds, Recoveries and Advances
made from the Servicer’s own funds (less servicing compensation as permitted by
the applicable Servicing Agreement in the case of any Servicer) and all other
amounts to be deposited in the Servicer Custodial Account. The Master
Servicer is hereby authorized to make withdrawals from and deposits to the
related Servicer Custodial Account for purposes required or permitted by this
Agreement.
(b) The
Master Servicer shall also enforce the obligation of each Servicer to establish
and maintain a Buy-Down Account in accordance with the applicable Servicing
Agreement, with records to be kept with respect thereto on a Mortgage Loan
by
Mortgage Loan basis, into which accounts any Buy-Down Funds shall be deposited
within 48 hours (or as of such other time specified in the related
Servicing Agreement) of receipt thereof. In addition, the Master
Servicer shall enforce the obligation of each Servicer to withdraw from the
Buy-Down Account and deposit in immediately available funds in the Servicer
Custodial Account an amount which, when added to such Mortgagor’s payment, will
equal the full monthly payment due under the related Mortgage Note.
(c) To
the
extent required by the related Servicing Agreement and by the related Mortgage
Note and not violative of current law, the Master Servicer shall enforce the
obligation of each Servicer to establish and maintain one or more escrow
accounts (for each Servicer, collectively, the “Escrow
Account”) and deposit and retain therein all collections from the
Mortgagors (or Advances by such Servicer) for the payment of taxes, assessments,
hazard insurance premiums or comparable items for the account of the Mortgagors.
Nothing herein shall require the Master Servicer to compel a Servicer to
establish an Escrow Account in violation of applicable law.
Section
3.09 Collection
of Mortgage Loan
Payments; Master Servicer Custodial Account and Certificate
Account.
(a) Continuously
from the date hereof until the principal and interest on all Mortgage Loans
are
paid in full, the Master Servicer shall enforce the obligations of the Servicers
to collect all payments due under the terms and provisions of the Mortgage
Loans
when the same shall become due and payable to the extent such procedures shall
be consistent with the applicable Servicing Agreement.
(b)
The
Securities Administrator shall establish and maintain the Certificate Account,
which shall be deemed to consist of nine sub-accounts and into which the Master
Servicer will deposit on or prior to 11:00 a.m. New York time, on each
Distribution Date (or, if the Securities Administrator is no longer the same
Person as, or an Affiliate of, the Master Servicer, the
57
Business
Day preceding each Distribution Date) all amounts on deposit in the Master
Servicer Custodial Account for distribution to Certificateholders.
(c) The
Master Servicer shall establish and maintain the Master Servicer Custodial
Account, which shall be an Eligible Account and which may be deemed to be a
sub-account of the Certificate Account for so long as the Master Servicer and
the Securities Administrator are the same person. The Master Servicer
shall, promptly upon receipt, deposit in the Master Servicer Custodial Account
and retain therein any amounts which are required to be deposited in the Master
Servicer Custodial Account by the Master Servicer.
(d) On
a
daily basis within one (1) Business Day of receipt (except as otherwise
specifically provided herein), the Master Servicer shall deposit or cause to
be
deposited in the Master Servicer Custodial Account the following payments and
collections remitted to the Master Servicer by each Servicer from its respective
Servicer Custodial Account pursuant to the related Servicing Agreement or
otherwise or received by the Master Servicer in respect of the related Mortgage
Loans subsequent to the Cut-off Date (other than in respect of principal and
interest due on the related Mortgage Loans on or before the Cut-off Date) and
the following amounts required to be deposited hereunder:
(i)
all
payments on account of principal of the related Mortgage Loans, including
Principal Prepayments;
(ii) all
payments on account of interest on the related Mortgage Loans, net of the
related Servicing Fee;
(iii)
(A) all related Insurance Proceeds and Liquidation Proceeds, other than
Insurance Proceeds to be (1) applied to the restoration or repair of the
Mortgaged Property, (2) released to the Mortgagor in accordance with
Customary Servicing Procedures or (3) required to be deposited to an Escrow
Account pursuant to Section 3.08 and
(B) any Insurance Proceeds released from an Escrow Account;
(iv)
any
amount required to be deposited by the Master Servicer pursuant to Section 3.09(e)
in connection with any losses on Permitted Investments with respect to the
Master Servicer Custodial Account;
(v)
any
amounts relating to REO Property required to be remitted by the applicable
Servicer;
(vi)
Periodic
Advances made by the applicable Servicer pursuant to the related Servicing
Agreement (or, if applicable, by the Master Servicer or the Trustee pursuant
to
Section 3.19 or
the Trustee pursuant to Section 8.01)
and any Compensating Interest paid by the applicable Servicer pursuant to the
related Servicing Agreement;
(vii)
all
related Purchase Prices, all related Substitution Adjustment Amounts and all
related Reimbursement Amounts to the extent received by the Master
Servicer;
(viii)
any
related Recoveries;
58
(ix)
any
related Buy-Down Funds required to be deposited pursuant to Section 3.08;
and
(x)
any
other amounts required to be deposited hereunder.
If
the
Master Servicer shall deposit any amount not required to be deposited, it may
at
any time withdraw such amount from the Master Servicer Custodial Account, any
provision herein to the contrary notwithstanding. All funds required
to be deposited in the Master Servicer Custodial Account shall be held by the
Master Servicer in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 3.11.
(e)
Each
institution at which the Master Servicer Custodial Account is maintained shall
invest the funds therein as directed in writing by the Master Servicer in
Permitted Investments, which shall mature not later than the Business Day next
preceding the Distribution Date (except that if such Permitted Investment is
an
obligation of the institution that maintains such account, then such Permitted
Investment shall mature not later than such Distribution Date) and, in each
case, shall not be sold or disposed of prior to its maturity. All such Permitted
Investments shall be made in the name of the Trustee, for the benefit of the
Certificateholders. All Master Servicer Custodial Account Reinvestment Income
shall be for the benefit of the Master Servicer as part of its master servicing
compensation and shall be remitted to the Master Servicer monthly as provided
herein. The amount of any losses realized in the Master Servicer Custodial
Account incurred in any such account in respect of any such investments shall
promptly be deposited by the Master Servicer from its own funds in the Master
Servicer Custodial Account.
(f)
Each
institution at which the Certificate Account is maintained shall invest the
funds therein if directed in writing by the Securities Administrator in
Permitted Investments that are obligations of the institution that maintains
the
Certificate Account, which shall mature on the Distribution Date and shall
not
be sold or disposed of prior to its maturity. All such Permitted Investments
shall be made in the name of the Trustee, for the benefit of the
Certificateholders. All income and gains net of any losses realized since the
preceding Distribution Date from Permitted Investments of funds in the
Certificate Account shall be for the benefit of the Securities Administrator
as
its compensation and the amount of any losses realized in the Certificate
Account in respect of any such Permitted Investments shall promptly be deposited
by the Securities Administrator from its own funds to the Certificate
Account.
(g) The
Master Servicer shall give notice to the Depositor, the Trustee, the Securities
Administrator and the Rating Agencies of any proposed change of location of
the
Master Servicer Custodial Account not later than 30 days after and not more
that 45 days prior to any change thereof. The Securities
Administrator shall give notice to the Depositor, the Trustee, the Master
Servicer and the Rating Agencies of any proposed change of the location of
the
Certificate Account maintained by the Securities Administrator not later than
30 days after and not more than 45 days prior to any change
thereof. The creation of the Master Servicer Custodial Account and
the Certificate Account shall be evidenced by a certification substantially
in
the form attached hereto as Exhibit F.
59
(h)
The
Securities Administrator shall designate each of the Lower-Tier Certificate
Sub-Account, Middle-Tier Certificate Sub-Account and the Upper-Tier Certificate
Sub-Account as a sub-account of the Certificate Account. On each Distribution
Date (other than the Final Distribution Date, if such Final Distribution Date
is
in connection with a purchase of the assets of the Trust Estate by the Master
Servicer), the Securities Administrator shall, from funds available on deposit
in the Certificate Account, be deemed to deposit into the Lower-Tier Certificate
Sub-Account, all funds on deposit in the Loan Group 1 Sub-Account, the Loan
Group 2 Sub-Account, the Loan Group 3 Sub-Account and the Loan Group 4
Sub-Account and immediately thereafter, be deemed to distribute to the
Middle-Tier Certificate Sub-Account, the Lower-Tier Distribution Amount. The
Securities Administrator shall then immediately, from funds available in the
Middle-Tier Certificate Sub-Account, be deemed to deposit into the Upper-Tier
Certificate Sub-Account, the Middle-Tier Distribution Amount.
Section
3.10 Access
to Certain
Documentation and Information Regarding the Mortgage Loans.
The
Master Servicer shall afford and shall enforce the obligation of the Servicers
to afford the Securities Administrator and the Trustee reasonable access to
all
records and documentation regarding the Mortgage Loans and all accounts,
insurance information and other matters relating to this Agreement, such access
being afforded without charge, but only upon reasonable request and during
normal business hours at the office designated by the Master Servicer or the
applicable Servicer.
Section
3.11 Permitted
Withdrawals from
the Certificate Account and the Master Servicer Custodial Account.
(a) The
Securities Administrator shall withdraw funds from the Certificate Account
for
distributions to Certificateholders in the manner specified in this
Agreement. In addition, the Master Servicer may from time to time
make withdrawals from the Master Servicer Custodial Account for the following
purposes:
(i) to
pay to
the Servicers (to the extent not previously retained by them), the Servicing
Fee
to which they are entitled pursuant to the Servicing Agreements and to pay
itself any Master Servicer Custodial Account Reinvestment Income;
(ii) to
pay to
the Securities Administrator and the Trustee any amounts due to the Securities
Administrator and the Trustee under this Agreement (including, but not limited
to, all amounts provided for under Section 3.02,
Section 3.07,
Section 8.05 and
Section 9.11,
other than the amounts provided for in the first sentence of Section 9.11);
(iii) to
reimburse the Servicers (or, if applicable, itself or the Trustee) for
unreimbursed Advances and Capitalization Reimbursement Amounts made pursuant
to
the related Servicing Agreement (or in the case of itself or the Trustee,
pursuant to Section 3.19 or
Section 8.01,
as
applicable), such right of reimbursement pursuant to this
clause (iii) being limited first to amounts received on the Mortgage
Loans serviced by such Servicer in the related Loan Group in respect of which
any such Advance was made or Capitalization Reimbursement Amount was created
and
then limited to amounts
60
received
on all the Mortgage Loans serviced by such Servicer (or, if applicable, the
Master Servicer or the Trustee) in respect of which any such Advance was made
or
Capitalization Reimbursement Amount was created;
(iv)
to
reimburse the Servicers (or, if applicable, itself or the Trustee) for any
Nonrecoverable Advance previously made, such right of reimbursement pursuant
to
this clause (iv) being limited first to amounts received on the
Mortgage Loans in the same Loan Group as the Mortgage Loan(s) in respect of
which such Nonrecoverable Advance was made and then limited to amounts received
on all the Mortgage Loans serviced by such Servicer (of, if applicable, the
Master Servicer or the Trustee);
(v) to
reimburse the Servicers for Insured Expenses from the related Insurance
Proceeds;
(vi) to
pay to
the purchaser, with respect to each Mortgage Loan or REO Property that has
been
purchased pursuant to Section 2.02 or
2.04,
all
amounts received thereon after the date of such purchase;
(vii) to
reimburse itself or the Depositor for expenses incurred by either of them and
reimbursable pursuant to this Agreement, including but not limited to, Section 3.02 and
Section 7.03;
(viii) to
withdraw any amount deposited in the Master Servicer Custodial Account and
not
required to be deposited therein;
(ix) to
reimburse the Servicers for any Capitalization Reimbursement Amounts created
but
only from amounts received on or in respect of the Mortgage Loans related to
principal; and
(x) to
clear
and terminate the Master Servicer Custodial Account upon termination of this
Agreement pursuant to Section 10.01.
If
the
Master Servicer shall remit to the Securities Administrator any amount not
required to be remitted, it may at any time direct the Securities Administrator
to withdraw such amount from the Certificate Account, any provision herein
to
the contrary notwithstanding. Such direction may be accomplished by
delivering an Officer’s Certificate to the Securities Administrator which
describes the amounts remitted in error to the Securities Administrator for
deposit to the Certificate Account.
(b) On
each
Distribution Date, funds on deposit in the Certificate Account and deemed to
be
on deposit in the Upper-Tier Certificate Sub-Account shall be used to make
payments on the Upper Tier Interests and the Class 2-A-R Certificate (in respect
of the Class UR Interest) as provided in Sections 5.01 and
5.02. The
Certificate Account shall be cleared and terminated upon termination of this
Agreement pursuant to Section
10.01.
61
Section
3.12 Maintenance
of Hazard
Insurance and Other Insurance.
(a) For
each
Mortgage Loan, the Master Servicer shall enforce any obligation of the Servicers
under the related Servicing Agreements to maintain or cause to be maintained
fire, flood and hazard insurance with extended coverage customary in the area
where the Mortgaged Property is located in accordance with the related Servicing
Agreements. It is understood and agreed that such insurance provided
for in this Section 3.12
shall be with insurers meeting the eligibility requirements set forth in the
applicable Servicing Agreement and that no earthquake or other additional
insurance is to be required of any Mortgagor or to be maintained on property
acquired in respect of a defaulted loan, other than pursuant to such applicable
laws and regulations as shall at any time be in force and as shall require
such
additional insurance.
(b) Pursuant
to Sections 3.08
and 3.09, any
amounts collected by the Master Servicer, or by any Servicer, under any
insurance policies (other than amounts to be applied to the restoration or
repair of the property subject to the related Mortgage or released to the
Mortgagor in accordance with the applicable Servicing Agreement) shall be
deposited into the Master Servicer Custodial Account, subject to withdrawal
pursuant to Sections 3.09
and 3.11. Any
cost incurred by the Master Servicer or any Servicer in maintaining any such
insurance if the Mortgagor defaults in its obligation to do so shall be added
to
the amount owing under the Mortgage Loan where the terms of the Mortgage Loan
so
permit; provided,
however, that the addition of any such cost shall not be taken into
account for purposes of calculating the distributions to be made to
Certificateholders and shall be recoverable by the Master Servicer or such
Servicer pursuant to Sections 3.08
and 3.09.
Section
3.13 Presentment
of Claims and
Collection of Proceeds.
The
Master Servicer shall (to the extent provided in the applicable Servicing
Agreement) cause the related Servicer to, prepare and present on behalf of
the
Trust and the Certificateholders all claims under the Insurance Policies and
take such actions (including the negotiation, settlement, compromise or
enforcement of the insured’s claim) as shall be necessary to realize recovery
under such policies. Any proceeds disbursed to the Master Servicer
(or disbursed to a Servicer and remitted to the Master Servicer) in respect
of
such policies, bonds or contracts shall be promptly deposited in the Master
Servicer Custodial Account upon receipt, except that any amounts realized that
are to be applied to the repair or restoration of the related Mortgaged Property
as a condition precedent to the presentation of claims on the related Mortgage
Loan to the insurer under any applicable Insurance Policy need not be so
deposited (or remitted).
Section
3.14 Enforcement
of Due-On-Sale
Clauses; Assumption Agreements.
To
the
extent provided in the applicable Servicing Agreement and to the extent Mortgage
Loans contain enforceable due-on-sale clauses, the Master Servicer shall cause
the Servicers to enforce such clauses in accordance with the applicable
Servicing Agreement. If applicable law prohibits the enforcement of a
due-on-sale clause or such clause is otherwise not enforced in accordance with
the applicable Servicing Agreement, and, as a consequence, a Mortgage Loan
is
assumed, the original Mortgagor may be released from liability in accordance
with the applicable Servicing Agreement.
62
Section
3.15 Realization
Upon Defaulted
Mortgage Loans; REO Property.
(a) The
Master Servicer shall cause each Servicer (to the extent required under the
related Servicing Agreement) to foreclose upon or otherwise comparably convert
the ownership of Mortgaged Properties securing such of the Mortgage Loans as
come into and continue in default and as to which no satisfactory arrangements
can be made for collection of delinquent payments, all in accordance with the
applicable Servicing Agreement.
(b) With
respect to any REO Property, the deed or certificate of sale shall be taken
in
the name of the Trust for the benefit of the Certificateholders, or its nominee,
on behalf of the Certificateholders. The Master Servicer shall
enforce the obligation of the Servicers, to the extent provided in the
applicable Servicing Agreement, to (i) cause the name of the Trust to be
placed on the title to such REO Property and (ii) ensure that the title to
such REO Property references this Agreement. The Master Servicer
shall, to the extent provided in the applicable Servicing Agreement, cause
the
applicable Servicer to sell any REO Property as expeditiously as possible and
in
accordance with the provisions of this Agreement and the related Servicing
Agreement, as applicable. Pursuant to its efforts to sell such REO
Property, the Master Servicer shall cause the applicable Servicer to protect
and
conserve such REO Property in the manner and to the extent required by the
applicable Servicing Agreement, subject to the REMIC Provisions. In
the event that the Trust Estate acquires any Mortgaged Property as aforesaid
or
otherwise in connection with a default or imminent default on a Mortgage Loan,
the Master Servicer shall enforce the obligation of the related Servicer to
dispose of such Mortgaged Property within the time period specified in the
applicable Servicing Agreement, but in any event prior to the end of the third
calendar year following the year in which the Servicer acquired the Mortgaged
Property on behalf of the Trust (such period, the “REO
Disposition Period”) unless (i) the Servicer provides to the
Trustee, the Master Servicer and the Securities Administrator an Opinion of
Counsel to the effect that the holding by the Trust of such Mortgaged Property
subsequent to the REO Disposition Period will not result in the imposition
of
taxes on “prohibited transactions” of the Trust as defined in Section 860F
of the Code or under the law of any state in which real property securing a
Mortgage Loan owned by the Trust is located or cause any REMIC created hereunder
to fail to qualify as a REMIC for federal income tax purposes or for state
tax
purposes under the laws of any state in which real property securing a Mortgage
Loan owned by the Trust is located at any time that any Certificates are
outstanding or (ii) the Servicer shall have applied for and received an
extension of such period from the Internal Revenue Service, in which case the
Trust Estate may continue to hold such Mortgaged Property for the period of
such
extension.
(c) The
Master Servicer shall, to the extent required by the related Servicing
Agreement, cause the applicable Servicer to deposit all funds collected and
received in connection with the operation of any REO Property in the Servicer
Custodial Account.
(d) The
applicable Servicer, upon the final disposition of any REO Property, shall
be
entitled to reimbursement for any related unreimbursed Advances, Capitalization
Reimbursement Amounts and other unreimbursed advances as well as any unpaid
Servicing Fees from Liquidation Proceeds received in connection with the final
disposition of such REO Property; provided that any such
unreimbursed Advances as well as any unpaid Servicing Fees may be reimbursed
or
paid, as the case may be, prior to final disposition, out of any net rental
income or other net amounts derived from such REO Property.
63
(e) The
Liquidation Proceeds from the final disposition of the REO Property, net of
any
payment to the applicable Servicer as provided above shall be deposited in
the
related Servicer Custodial Account on or prior to the Determination Date in
the
month following receipt thereof and be remitted by wire transfer in immediately
available funds to the Master Servicer for deposit into the Master Servicer
Custodial Account.
Notwithstanding
any other provision of this Agreement, the Master Servicer shall not permit
any
Mortgaged Property acquired by the Trust to be rented (or allowed to continue
to
be rented) or otherwise used for the production of income by or on behalf of
the
Trust in such a manner or pursuant to any terms that would (i) cause such
Mortgaged Property to fail to qualify as “foreclosure property” within the
meaning of Section 860G(a)(8) of the Code, (ii) result in the
receipt by any REMIC created hereunder of any “income from non-permitted assets”
within the meaning of Section 860F(a)(2)(B) of the Code or any “net
income from foreclosure property” which is subject to taxation under the REMIC
Provisions or (iii) subject any REMIC created hereunder to the imposition
of any federal, state or local income taxes on the income earned from such
Mortgaged Property under Section 860G(c) of the Code or otherwise,
unless the Master Servicer or related Servicer, as applicable, has agreed to
indemnify and hold harmless the Trust with respect to the imposition of any
such
taxes.
Section
3.16 Trustee
to Cooperate;
Release of Mortgage Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Master Servicer
or
the related Servicer of a notification that payment in full will be escrowed
in
a manner customary for such purposes, the Master Servicer or the related
Servicer will immediately notify the Trustee (or, at the direction of the
Trustee, a Custodian) by delivering, or causing to be delivered, two copies
(one
of which will be returned to the related Servicer with the Mortgage File) of
a
Request for Release (which may be delivered in an electronic format acceptable
to the Trustee and the Master Servicer or the related Servicer). Upon
receipt of such request, the Trustee or a Custodian, as applicable, shall within
seven (7) Business Days release the related Mortgage File to the Master
Servicer or the related Servicer. The Trustee shall at the Master
Servicer’s or the related Servicer’s direction execute and deliver to the Master
Servicer or the related Servicer the request for reconveyance, deed of
reconveyance or release or satisfaction of mortgage or such instrument releasing
the lien of the Mortgage relating to the Mortgage Loan, in each case provided
by
the Master Servicer or the related Servicer, together with the Mortgage Note
with written evidence of cancellation thereon. If the Mortgage has
been recorded in the name of MERS or its designee, the Master Servicer shall
enforce the applicable Servicer’s obligation under the related Servicing
Agreement take all necessary action to reflect the release of the Mortgage
on
the records of MERS. Expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
related Mortgagor of the Mortgage Loan.
From
time
to time and as shall be appropriate for the servicing or foreclosure of any
Mortgage Loan, including for such purpose collection under any Primary Mortgage
Insurance Policy, any policy of flood insurance, any fidelity bond or errors
or
omissions policy, or for the purposes of effecting a partial release of any
Mortgaged Property from the lien of the Mortgage or the making of any
corrections to the Mortgage Note or the Mortgage or any of the other documents
included in the Mortgage File, the Trustee or a Custodian, as applicable, shall,
upon
64
delivery
to the Trustee (or, at the direction of the Trustee, a Custodian) of a Request
for Release signed by a Master Servicing Officer or a Servicing Officer, release
the Mortgage File within seven (7) Business Days to the Master Servicer or
the related Servicer. Subject to the further limitations set forth
below, the Master Servicer or the applicable Servicer shall cause the Mortgage
Files so released to be returned to the Trustee or a Custodian, as applicable,
when the need therefor no longer exists, unless the Mortgage Loan is liquidated
and the proceeds thereof are deposited in the related Servicer Custodial
Account, in which case such Servicer shall deliver to the Trustee or a
Custodian, as applicable, a Request for Release, signed by a Servicing
Officer.
If
the
Master Servicer or any related Servicer at any time seeks to initiate a
foreclosure proceeding in respect of any Mortgaged Property as authorized by
this Agreement or the Servicing Agreement, the Master Servicer or any related
Servicer shall deliver or cause to be delivered to the Trustee, for signature,
as appropriate, any court pleadings, requests for trustee’s sale or other
documents necessary to effectuate such foreclosure or any legal action brought
to obtain judgment against the Mortgagor on the Mortgage Note or the Mortgage
or
to obtain a deficiency judgment or to enforce any other remedies or rights
provided by the Mortgage Note or the Mortgage or otherwise available at law
or
in equity.
Section
3.17 Documents,
Records and Funds
in Possession of the Master Servicer to be Held for the
Trustee.
Notwithstanding
any other provisions of this Agreement, the Master Servicer shall enforce the
obligation of each Servicer to transmit to the Trustee (or a Custodian on behalf
of the Trustee) as required by this Agreement and the Servicing Agreements
all
documents and instruments in respect of a Mortgage Loan coming into the
possession of the Servicer from time to time and shall account fully to the
Trustee as required by this Agreement and the Servicing Agreements for any
funds
received by the Master Servicer or the related Servicer or which otherwise
are
collected by the Master Servicer or the related Servicer as Liquidation
Proceeds, Recoveries or Insurance Proceeds in respect of any Mortgage
Loan. All Mortgage Files and funds collected or held by, or under the
control of, the Master Servicer or the related Servicer in respect of any
Mortgage Loans, whether from the collection of principal and interest payments
or from Liquidation Proceeds, including but not limited to, any funds on deposit
in the Master Servicer Custodial Account or any Servicer Custodial Account,
shall be held by the Master Servicer or the related Servicer for and on behalf
of the Trustee and shall be and remain the sole and exclusive property of the
Trustee on behalf of the Trust, subject to the applicable provisions of this
Agreement and the related Servicing Agreement. The Master Servicer
also agrees that it shall not, and shall enforce any requirement under the
related Servicing Agreement that the related Servicer shall not, knowingly
create, incur or subject any Mortgage File or any funds that are deposited
in
any Master Servicer Custodial Account, any Servicer Custodial Account, the
Certificate Account or any Escrow Account, or any funds that otherwise are
or
may become due or payable to the Trustee for the benefit of the
Certificateholders, to any claim, lien, security interest, judgment, levy,
writ
of attachment or other encumbrance created by the Master Servicer or Servicer,
or assert by legal action or otherwise any claim or right of setoff against
any
Mortgage File or any funds collected on, or in connection with, a Mortgage
Loan,
except, however, that the Master Servicer shall be entitled to set off against
and deduct from any such
65
funds
any
amounts that are properly due and payable to the Master Servicer under this
Agreement.
Section
3.18 Master
Servicer
Compensation.
As
compensation for its services hereunder, the Master Servicer shall be entitled
to compensation in the form of the Master Servicer Custodial Account
Reinvestment Income. The Master Servicer shall be required to pay all
expenses incurred by it in connection with its master servicing activities
hereunder and shall not be entitled to reimbursement therefor except as
specifically provided in this Agreement.
Section
3.19 Advances.
The
Master Servicer shall enforce the obligations of each Servicer to make a
Periodic Advance in accordance with the applicable Servicing
Agreement. A Servicer shall be entitled to be reimbursed from the
applicable Servicer Custodial Account for all Advances of its own funds made
pursuant to the related Servicing Agreement. Based upon information
set forth in the servicer reports, the Master Servicer shall inform the
Securities Administrator of the amount of the Periodic Advance to be made by
a
Servicer no later than the related Remittance Date. If a Servicer
fails to make any required Periodic Advance pursuant to the related Servicing
Agreement, the Master Servicer shall (i) unless the Master Servicer
determines that such Periodic Advance would not be recoverable in its good
faith
business judgment, make such Periodic Advance not later than the Business Day
preceding the related Distribution Date and (ii) to the extent such failure
leads to the termination of the Servicer and until such time as a successor
Servicer is appointed, continue to make Periodic Advances required pursuant
to
the related Servicing Agreement for any Distribution Date, within the same
time
frame set forth in (i) above, unless the Master Servicer determines (to the
extent provided in the related Servicing Agreement) that such Periodic Advance
would not be recoverable. If the Master Servicer is unable to make a
Periodic Advance required to be made by it in accordance with this Section 3.19,
the Master Servicer shall immediately, and in no event later than 5:00 P.M.
New
York time on the last Business Day preceding the related Distribution Date,
give
written notice thereof to the Trustee, the Securities Administrator and the
Depositor.
Section
3.20 Annual
Statement as to
Compliance.
(a) Each
of
the Master Servicer and the Securities Administrator shall deliver, and shall
cause any Additional Servicer engaged by it to deliver, or otherwise make
available to the Depositor and the Securities Administrator (and the Securities
Administrator will make available to the Trustee and each Rating Agency), no
later than March 15th of each calendar year beginning in 20 , an
Officer’s Certificate (each, together with such similar certificate delivered by
each Servicer as described in Section 3.20(b),
a “Compliance
Statement”), signed by an officer of such party, stating, as to the
signer thereof, that (a) a review of the activities of such party during
the preceding calendar year or portion thereof and of performance of such party
under this Agreement or such applicable agreement in case of an Additional
Servicer has been made under such officers’ supervision and (b) to the best
of such officer’s knowledge, based on such review, such party has fulfilled all
of its obligations under this Agreement or such applicable agreement in case
of
an Additional Servicer in all material respects throughout such
66
year,
or,
if there has been a failure to fulfill any such obligation in any material
respect, specifying each such failure known to such officer and the nature
and
status thereof. Such Compliance Statements shall contain no
restrictions or limitations on their use. The obligations of the
Master Servicer and the Securities Administrator under this Section apply
to each entity that acted as Master Servicer or Securities Administrator, as
applicable, during the applicable period, whether or not such entity is acting
as Master Servicer or Securities Administrator at the time such Compliance
Statement is required to be delivered.
(b) In
the
event the Master Servicer or the Securities Administrator is terminated or
resigns pursuant to the terms of this Agreement, such party shall provide,
and
shall use its reasonable efforts to cause any Additional Servicer that resigns
or is terminated under any applicable servicing agreement to provide, a
Compliance Statement pursuant to this Section 3.20
with respect to the period of time that the Master Servicer or the Securities
Administrator was subject to this Agreement or such applicable agreement in
the
case of an Additional Servicer or the period of time that the Additional
Servicer was subject to such other servicing agreement. The Master
Servicer shall enforce any obligation of each Servicer, to the extent set forth
in the related Servicing Agreement, to deliver to the Master Servicer a
Compliance Statement within the time frame set forth in, and in such form and
substance as may be required pursuant to, the related Servicing
Agreement. The Master Servicer shall include such Compliance
Statements of the Servicers with its own Compliance Statement to be submitted
pursuant to this Section 3.20.
Section
3.21 Assessments
of Compliance
and Attestation Reports .
(a) Each
of
the Master Servicer, the Securities Administrator and the Custodian, each at
its
own expense, shall deliver, and shall cause each Servicing Function Participant
engaged by it to deliver, or otherwise make available to the Depositor and
the
Securities Administrator on or before March 10th of each calendar year beginning
in 20 (provided that each of the Master Servicer, the
Securities Administrator and the Custodian shall make its best efforts to
deliver such report by March 10th,
but
will not be in default in its obligation to so deliver such report unless it
is
not delivered by March 15th),
a
report regarding such party’s assessment of compliance with the Relevant
Servicing Criteria (each, together with such similar report delivered by each
Servicer as described in Section 3.21(c),
an “Assessment
of Compliance”) that contains (i) a statement by such party of its
responsibility for assessing compliance with the Relevant Servicing Criteria,
(ii) a statement that such party used the Relevant Servicing Criteria to
assess compliance with the Relevant Servicing Criteria, (iii) such party’s
assessment of compliance with the Relevant Servicing Criteria as of and for
the
fiscal year covered by the Form 10-K required to be filed pursuant to Section 3.22(c),
including, if there has been any material instance of noncompliance with the
Relevant Servicing Criteria, a discussion of each such failure and the nature
and status thereof and (iv) a statement that a registered public accounting
firm has issued an attestation report on such party’s assessment of compliance
with the Relevant Servicing Criteria as of and for such period.
No
later
than February 1 of each fiscal year for the Trust for which a 10-K is required
to be filed, the Master Servicer, the Securities Administrator and the Custodian
shall each forward to the Depositor and the Securities Administrator the name
of
each Servicing Function Participant engaged by it and what Relevant Servicing
Criteria will be addressed in the report on assessment of compliance prepared
by
such Servicing Function Participant. When the Master
67
Servicer,
the Securities Administrator and the Custodian (or any Servicing Function
Participant engaged by them) submit their assessments to the Depositor and
the
Securities Administrator, such parties will also at such time include the
assessment (and attestation pursuant to Section 3.21(b))
of each Servicing Function Participant engaged by it.
At
any
time after February 1 of each fiscal year, if the Master Servicer, the
Securities Administrator or the Custodian determines or is informed that the
list of Relevant Servicing Criteria to be addressed in the report on assessment
of compliance prepared by each Servicing Function Participant is no longer
in
complete accordance or no longer reasonably likely to be in complete accordance
with the Relevant Servicing Criteria for such Servicing Function Participant
as
notified to the Depositor and Securities Administrator in the paragraph
immediately above, the Master Servicer, the Securities Administrator or the
Custodian, as the case may be, shall promptly inform the Depositor and the
Securities Administrator by written notice that such Servicing Function
Participant is likely to address different Relevant Servicing Criteria in the
report on assessment of compliance prepared by such Servicing Function
Participant. Following transmission of such notice, the Master
Servicer, the Securities Administrator or the Custodian, as the case may be,
shall negotiate with such Servicing Function Participants that the Master
Servicer, Securities Administrator or Custodian, as applicable, deems necessary
so that all Relevant Servicing Criteria shall be addressed by one or more
Servicing Function Participants and so that all Assessments of Compliance shall,
in the determination of the Depositor, be satisfactory.
Within
ten calendar days of receipt of such Assessments of Compliance, the Securities
Administrator shall confirm that the Assessments of Compliance, taken
individually address the Relevant Servicing Criteria for each party as set
forth
on Exhibit N and on
any similar exhibit set forth in each Servicing Agreement in respect of
each Servicer and notify the Depositor of any exceptions. None of
such parties shall be required to deliver any such Assessments of Compliance
until April 15 in any given year so long as it has received written confirmation
from the Depositor that a Form 10-K is not required to be filed in respect
of
the Trust for the preceding calendar year. The Custodian and any
Servicing Function Participant engaged by it shall not be required to deliver
or
cause the delivery of such Assessments of Compliance in any given year that
a
Form 10-K is not required to be filed in respect of the Trust for the preceding
fiscal year; provided,
however,
the Custodian
shall deliver to the Depositor on or before March 15th
of any
such year in which the Custodian is not required to deliver an Assessment of
Compliance with respect to any other transaction for which the Depositor is
the
depositor, a copy of the Assessment of Compliance for the preceding fiscal
year
prepared by the Custodian relating to the Custodian’s servicing platform with
respect to asset-backed securities that are backed by assets of the type backing
the Offered Certificates.
(b) Each
of
the Master Servicer, the Securities Administrator and the Custodian, each at
its
own expense, shall cause, and shall cause each Servicing Function Participant
engaged by it to cause, on or before March 10th of each calendar year beginning
in 20 (provided that each of the Master Servicer, the
Securities Administrator and the Custodian shall make its best efforts to
deliver such report by March 10th,
but
will not be in default in its obligation to so deliver such report unless it
is
not delivered by March 15th),
a
registered public accounting firm (which may also render other services to
the
Master Servicer, the Securities Administrator, the Custodian or
68
such
other Servicing Function Participants, as the case may be) and that is a member
of the American Institute of Certified Public Accountants to furnish a report
(each, together with such similar report delivered by each Servicer as described
in Section 3.21(c),
an “Attestation
Report”) to the Securities Administrator and the Depositor, to the effect
that (i) it has obtained a representation regarding certain matters from
the management of such party, which includes an assertion that such party has
complied with the Relevant Servicing Criteria, and (ii) on the basis of an
examination conducted by such firm in accordance with standards for attestation
engagements issued or adopted by the Public Company Accounting Oversight Board,
it is expressing an opinion as to whether such party’s compliance with the
Relevant Servicing Criteria was fairly stated in all material respects, or
it
cannot express an overall opinion regarding such party’s assessment of
compliance with the Relevant Servicing Criteria. In the event that an
overall opinion cannot be expressed, such registered public accounting firm
shall state in such Attestation Report why it was unable to express such an
opinion. Each such related Attestation Report shall be made in
accordance with Rules 1-02(a)(3) and 2-02(g) of the Commission’s Regulation
S-X. Such Attestation Reports must be available for general use and
not contain restricted use language. If requested by the Depositor,
such report shall contain or be accompanied by a consent of such accounting
firm
to inclusion or incorporation of such report in the Depositor’s registration
statement on Form S-3 relating to the Offered Certificates and the Form 10-K
for
the Trust.
Within
ten calendar days of receipt of such Attestation Reports, the Securities
Administrator shall confirm that each Assessment of Compliance is coupled with
a
related Attestation Report and shall notify the Depositor of any
exceptions. None of the Master Servicer, the Securities Administrator
or any Servicing Function Participant engaged by such parties shall be required
to deliver or cause the delivery of such Attestation Reports until April 15
in
any given year so long as it has received written confirmation from the
Depositor that a Form 10-K is not required to be filed in respect of the Trust
for the preceding fiscal year. The Custodian and any Servicing
Function Participant engaged by it shall not be required to deliver or cause
the
delivery of such Attestation Report in any given year that a Form 10-K is not
required to be filed in respect of the Trust for the preceding fiscal year;
provided, however,
the Custodian shall
deliver to the Depositor on or before March 15th
of any
such year in which the Custodian is required to deliver an Assessment of
Compliance pursuant to the proviso in the last paragraph of Section 3.21(a),
a
copy of an attestation report relating to such Assessment of
Compliance.
(c) The
Master Servicer shall enforce any obligation of each Servicer, to the extent
set
forth in the related Servicing Agreement, to deliver to the Master Servicer
an
Assessment of Compliance and related Attestation Report within the time frame
set forth in, and in such form and substance as may be required pursuant to,
the
related Servicing Agreement. The Master Servicer shall include such
Assessments of Compliance and Attestation Reports of the Servicers with its
own
Assessment of Compliance and related Attestation Report to be submitted pursuant
to this Section 3.21.
(d) In
the
event the Master Servicer, the Custodian or the Securities Administrator is
terminated or resigns pursuant to the terms of this Agreement, such party shall
provide, and each such party shall cause any Servicing Function Participant
engaged by it to provide, an
69
Assessment
of Compliance pursuant to this Section 3.21,
coupled with an Attestation Report as required in this Section 3.21
with respect to the period of time that the Master Servicer or the Securities
Administrator was subject to this Agreement.
Section
3.22 Reports
to the
Commission.
(a) The
Securities Administrator and the Master Servicer shall reasonably cooperate
with
the Depositor in connection with the Trust’s satisfying its reporting
requirements under the Exchange Act. Without limiting the generality
of the foregoing, the Securities Administrator shall prepare and file on behalf
of the Trust any Form 8-K, Form 10-D and Form 10-K required by the Exchange
Act
and the rules and regulations of the Commission thereunder, and the Master
Servicer shall sign such Forms on behalf of the
Trust. Notwithstanding the previous sentence, the Depositor shall
file the Form 8-K in connection with the filing of this Agreement.
(b) Within
15
days after each Distribution Date (subject to permitted extensions under the
Exchange Act), the Securities Administrator shall prepare and file on behalf
of
the Trust any Form 10-D required by the Exchange Act, in form and substance
as
required by the Exchange Act. The Securities Administrator shall file
each Form 10-D with a copy of the Monthly Statement for such Distribution Date
attached thereto. Any disclosure in addition to the Monthly Statement
for such Distribution Date that is required to be included on Form 10-D (“Additional
Form 10-D Disclosure”) shall be reported by the parties set forth on
Exhibit O
hereto to the Depositor and the Securities Administrator and directed and
approved by the Depositor pursuant to the following paragraph, and the
Securities Administrator will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-D Disclosure, except
as
set forth in this Section 3.22(b).
As
set
forth on Exhibit O
hereto, within 5 calendar days after the related Distribution Date, (i) the
parties described on Exhibit O shall
be required to provide to the Securities Administrator (at [email address]
with
a copy by facsimile to [fax number]) and the Depositor, to the extent known
by a
responsible officer thereof, in XXXXX-compatible format, or in such other format
as otherwise agreed upon by the Securities Administrator and such party, any
Additional Form 10-D Disclosure, if applicable, together with an Additional
Disclosure Notification in the form of Exhibit S and
(ii) the Depositor shall approve, as to form and substance, or disapprove,
as the case may be, the inclusion of the Additional Form 10-D Disclosure on
Form
10-D. The Securities Administrator shall compile all such information
provided to it in a Form 10-D prepared by it. The Securities
Administrator has no duty under this Agreement to monitor or enforce the
performance by the parties listed on Exhibit O of
their duties under this paragraph or proactively solicit or procure from such
parties any Additional Form 10-D Disclosure information. The
Depositor will be responsible for any reasonable fees and expenses assessed
or
incurred by the Securities Administrator in connection with including any
Additional Form 10-D Disclosure on Form 10-D pursuant to this
paragraph.
After
preparing the Form 10-D, the Securities Administrator shall forward
electronically a copy of the Form 10-D to the Depositor and, upon request,
the
Master Servicer for review. Within 2 Business Days after receipt of
such copy, the Depositor shall notify the Securities Administrator in writing
(which may be furnished electronically) of any changes to or approval of such
Form 10-D. In the absence of any written changes or approval, the
Securities
70
Administrator
shall be entitled to assume that such Form 10-D is in final form and the
Securities Administrator may proceed with the execution and filing of the Form
10-D. A duly authorized officer of the Master Servicer shall sign
each Form 10-D. If a Form 10-D cannot be filed on time or if a
previously filed Form 10-D needs to be amended, the Securities Administrator
will follow the procedures set forth in Section
3.22(h)(ii). Form 10-D requires the registrant to indicate (by
checking “yes” or “no”) that it “(1) has filed all reports required to be filed
by Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or
for such shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90 days.” The
Depositor hereby represents to the Securities Administrator that the Depositor
has filed all such required reports during the preceding 12 months and that
is
has been subject to such filing requirement for the past 90 days. The
Depositor shall notify the Securities Administrator in writing, no later than
the fifth calendar day after the related Distribution Date with respect to
the
filing of a report on Form 10-D, if the answer to either question should be
“no.” The Securities Administrator shall be entitled to rely on such
representations in preparing, executing and/or filing any such
report. Promptly (but no later than 1 Business Day) after filing with
the Commission, the Securities Administrator will make available on its internet
website a final executed copy of each Form 10-D prepared and filed by the
Securities Administrator. The signing party at the Master Servicer
can be contacted at the address specified in Section
11.05. Each party to this Agreement acknowledges that the
performance by the Master Servicer and Securities Administrator of its duties
under this Section 3.22(b)
related to the timely preparation, arrangement for execution and filing of
Form
10-D is contingent upon such parties strictly observing all applicable deadlines
in the performance of their duties under this Section 3.22(b) and
also contingent upon the Servicers, the Custodian and any Servicing Function
Participant strictly observing deadlines no later than those set forth in this
paragraph that are applicable to the parties to this Agreement in the delivery
to the Securities Administrator of any necessary Additional Form 10-D Disclosure
pursuant to the related Servicing Agreements, any custodial agreement or any
other applicable agreement. Neither the Master Servicer nor the
Securities Administrator shall have any liability for any loss, expense, damage,
claim arising out of or with respect to any failure to properly prepare, arrange
for execution and/or timely file such Form 10-D, where such failure results
from
the Master Servicer’s or the Securities Administrator’s inability or failure to
receive, on a timely basis, any information from any other party hereto or
any
Servicer, Custodian or Servicing Function Participant needed to prepare, arrange
for execution or file such Form 10-D, not resulting from its own negligence,
bad
faith or willful misconduct.
(c) On
or
prior to the 90th
day
after the end of each fiscal year of the Trust or such earlier date as may
be
required by the Exchange Act (the “10-K
Filing Deadline”) (it being understood that the fiscal year for the Trust
ends on December 31st of each year), commencing in March 20 , the
Securities Administrator shall prepare and file on behalf of the Trust a Form
10-K, in form and substance as required by the Exchange Act. Each
such Form 10-K shall include the following items, in each case to the extent
they have been delivered to the Securities Administrator within the applicable
time frames set forth in this Agreement and the related Servicing
Agreements:
71
(i) a
Compliance Statement for each Servicer, the Master Servicer and the Securities
Administrator (each such party, together with the Custodian, a “Reporting
Servicer”) as described under Section 3.20;
(ii) (A) the
Assessment of Compliance for each Reporting Servicer, as described under Section 3.21(a) and
(c),
and
(B) if each Reporting Servicer’s Assessment of Compliance identifies any
material instance of noncompliance, disclosure identifying such instance of
noncompliance, or if each Reporting Servicer’s Assessment of Compliance is not
included as an exhibit to such Form 10-K, disclosure that such report is not
included and an explanation why such report is not included; provided, however,
that the Securities
Administrator, at its discretion, may omit from the Form 10-K any Assessment
of
Compliance described in this clause (ii) or Attestation Report described in
clause (iii) below that is not required to be filed with such Form 10-K
pursuant to Regulation AB;
(iii) (A) the
Attestation Report for each Reporting Servicer, as described under Section 3.21(b) and
(c),
and
(B) if any Reporting Servicer’s Attestation Report identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any Reporting Servicer’s Attestation Report is not included
as an exhibit to such Form 10-K, disclosure that such Attestation
Report is not included and an explanation why such Attestation Report is not
included; and
(iv) a
Xxxxxxxx-Xxxxx Certification, as described in Section 3.22(e).
Any
disclosure or information in addition to (i) through (iv) above that
is required to be included on Form 10-K (“Additional
Form 10-K Disclosure”) shall be reported by the parties set forth on
Exhibit P
to the Depositor and the Securities Administrator and directed and approved
by
the Depositor pursuant to the following paragraph, and the Securities
Administrator will have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-K Disclosure, except as set forth
in
this Section 3.22(d).
As
set
forth on Exhibit
P hereto, no later than March 1 of each year that the Trust is subject
to
the Exchange Act reporting requirements, commencing in 20 , (i) the
parties described in Exhibit P shall be
required to provide to the Securities Administrator (at [email address] with
a
copy by facsimile to [fax number]) and the Depositor, to the extent known by
a
responsible officer thereof, in XXXXX-compatible format, or in such other format
as otherwise agreed upon by the Securities Administrator and such party, any
Additional Form 10-K Disclosure, together with an Additional Disclosure
Notification in the form attached hereto as Exhibit S and (ii)
the Depositor shall approve, as to form and substance, or disapprove, as the
case may be, the inclusion of the Additional Form 10-K Disclosure on Form
10-K. The Securities Administrator shall compile all such information
provided to it in a Form 10-K prepared by it. The Securities
Administrator has no duty under this Agreement to monitor or enforce the
performance by the parties listed on Exhibit P of their
duties under this paragraph or proactively solicit or procure from such parties
any Additional Form 10-K Disclosure information. The Depositor will
be responsible for any reasonable fees and expenses assessed or incurred by
the
Securities Administrator in connection with including any Additional Form 10-K
Disclosure on Form 10-K pursuant to this paragraph.
72
After
preparing the Form 10-K, the Securities Administrator shall forward
electronically a copy of the Form 10-K to the Master Servicer and Depositor
for
review. Within three Business Days after receipt of such copy, the
Depositor shall notify the Securities Administrator in writing (which may be
furnished electronically) of any changes to or approval of such Form
10-K. A senior officer of the Master Servicer in charge of the master
servicing function shall sign the Form 10-K. If a Form 10-K cannot be
filed on time or if a previously filed Form 10-K needs to be amended, the
Securities Administrator will follow the procedures set forth in Section
3.22(h)(ii). Form 10-K requires the registrant to indicate (by
checking “yes” or “no”) that it “(1) has filed all reports required to be filed
by Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or
for such shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90
days.” The Depositor hereby represents to the Securities
Administrator that the Depositor has filed all such required reports during
the
preceding 12 months and that is has been subject to such filing requirement
for
the past 90 days. The Depositor shall notify the Securities
Administrator in writing, no later than March 15th with respect to the filing
of
a report on Form 10-K, if the answer to either question should be
“no.” The Securities Administrator shall be entitled to rely on such
representations in preparing, executing and/or filing any such
report. Promptly (but no later than 1 Business Day) after filing with
the Commission, the Securities Administrator will make available on its internet
website a final executed copy of each Form 10-K prepared and filed by the
Securities Administrator. The signing party at the Master Servicer
can be contacted at the address specified in Section
11.05. The parties to this Agreement acknowledge that the
performance by the Master Servicer and the Securities Administrator of its
duties under this Section 3.22(c)
related to the timely preparation, arrangement for execution and filing of
Form
10-K is contingent upon such parties strictly observing all applicable deadlines
in the performance of their duties under this Section 3.22(c),
Section
3.22(e), Section 3.20 and
Section 3.21
and is also contingent upon the Servicers, the Custodian and any Servicing
Function Participant strictly observing deadlines no later than those set forth
in this paragraph that are applicable to the parties to this Agreement in the
delivery to the Securities Administrator of any necessary Additional Form 10-K
Disclosure, any Compliance Statement and any Assessment of Compliance and
Attestation Report pursuant to the related Servicing Agreements, any custodial
agreement or any other applicable agreement. Neither the Master
Servicer nor the Securities Administrator shall have any liability for any
loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare, arrange for execution and/or timely file such Form 10-K, where such
failure results from the Securities Administrator’s inability or failure to
receive, on a timely basis, any information from any other party hereto or
any
Servicer or Servicing Function Participant needed to prepare, arrange for
execution or file such Form 10-K, not resulting from its own negligence, bad
faith or willful misconduct.
(d) Within
four (4) Business Days after the occurrence of an event requiring disclosure
on
Form 8-K (each such event, a “Reportable
Event”), and if requested by the Depositor, the Securities Administrator
shall prepare and file on behalf of the Trust any Form 8-K, as required by
the
Exchange Act, provided
that the Depositor shall file the initial Form 8-Ks in connection with the
issuance of the Certificates. Any disclosure or information related
to a Reportable Event or that is otherwise required to be included on Form
8-K
other than the initial Form 8-Ks filed in connection with the issuance of the
Certificates (“Form
8-K
Disclosure Information”) shall be reported by the parties set forth on
Exhibit Q
hereto to the Depositor and
73
the
Securities Administrator and directed and approved by the Depositor pursuant
to
the following paragraph, and the Securities Administrator will have no duty
or
liability for any failure hereunder to determine or prepare any Additional
Form
8-K Disclosure Information, or any Form 8-K, except as set forth in this Section 3.22(d).
As
set
forth on Exhibit Q
hereto, no later than the end of business on the 2nd Business Day after the
occurrence of a Reportable Event (i) the parties described in Exhibit Q shall be
required to provide to the Securities Administrator (at [email address] with
a
copy by facsimile to [fax number]) and to the Depositor, to the extent known
by
a responsible officer thereof, in XXXXX-compatible format, or in such other
format as otherwise agreed upon by the Securities Administrator and such party,
any Form 8-K Disclosure Information, if applicable, together with an Additional
Disclosure Notification in the form attached hereto as Exhibit S and
(ii) the Depositor shall approve, as to form and substance, or disapprove,
as the case may be, the inclusion of the Form 8-K Disclosure
Information. The Securities Administrator shall compile all such
information provided to it in a Form 8-K prepared by it. The
Securities Administrator has no duty under this Agreement to monitor or enforce
the performance by the parties listed on Exhibit Q of
their duties under this paragraph or proactively solicit or procure from such
parties any Form 8-K Disclosure Information. The Depositor will be
responsible for any reasonable fees and expenses assessed or incurred by the
Securities Administrator in connection with including any Form 8-K Disclosure
Information on Form 8-K pursuant to this paragraph.
After
preparing the Form 8-K, the Securities Administrator shall forward
electronically a copy of the Form 8-K to the Master Servicer and Depositor
for
review. No later than the close of business New York City time on the
3rd Business Day after the Reportable Event, the Depositor shall notify the
Securities Administrator in writing (which may be furnished electronically)
of
any changes to or approval of such Form 8-K. In the absence of
receipt of any written changes or approval, the Securities Administrator shall
be entitled to assume that such Form 8-K is in final form and the Securities
Administrator may proceed with the execution and filing of the Form
8-K. A duly authorized officer of the Master Servicer shall sign the
Form 8-K. If a Form 8-K cannot be filed on time or if a previously
filed Form 8-K needs to be amended, the Securities Administrator will follow
the
procedures set forth in Section 3.22(h)(ii). Promptly
(but no later than 1 Business Day) after filing with the Commission, the
Securities Administrator will, make available on its internet website a final
executed copy of each Form 8-K prepared and filed by the Securities
Administrator. The signing party at the Master Servicer can be
contacted at the address specified in Section 11.05. The
parties to this Agreement acknowledge that the performance by the Securities
Administrator of its duties under this Section 3.22(d)
related to the timely preparation, arrangement for execution and filing of
Form
8-K is contingent upon such parties strictly observing all applicable deadlines
in the performance of their duties under this Section 3.22(d)
and also contingent upon the Servicers, the Custodian and any Servicing Function
Participant strictly observing deadlines no later than those set forth in this
paragraph that are applicable to the parties to this Agreement in the delivery
to the Securities Administrator of any necessary Form 8-K Disclosure Information
pursuant to the related Servicing Agreements, any custodial agreement or any
other applicable agreement. Neither the Master Servicer nor the
Securities Administrator shall have any liability for any loss, expense, damage,
claim arising out of or with respect to any failure to properly prepare, arrange
for execution and/or timely file such Form 8-K, where such failure results
from
the Securities Administrator’s
74
inability
or failure to receive, on a timely basis, any information from any other party
hereto or any Servicer, Custodian or Servicing Function Participant needed
to
prepare, arrange for execution or file such Form 8-K, not resulting from its
own
negligence, bad faith or willful misconduct.
(e) Each
Form
10-K shall include a certification (the “Xxxxxxxx-Xxxxx
Certification”), exactly as set forth in Exhibit M
attached hereto, required to be included therewith pursuant to the
Xxxxxxxx-Xxxxx Act. The Securities Administrator (if the Securities
Administrator is not the same entity as the Master Servicer) shall provide,
and
shall cause any Servicing Function Participant engaged by it to provide, to
the
Person who signs the Xxxxxxxx-Xxxxx Certification (the “Certifying
Person”), by March 10th of each year in which the Trust is subject to the
reporting requirements of the Exchange Act and otherwise within a reasonable
period of time upon request, a certification (each, together with such similar
certification delivered by each Servicer as described in Section 3.22(f),
a “Back-up
Certification”), in the form attached hereto as Exhibit R,
upon
which the Certifying Person, the entity for which the Certifying Person acts
as
an officer, and such entity’s officers, directors and Affiliates (collectively
with the Certifying Person, “Certification
Parties”) can reasonably rely. The senior officer of the
Master Servicer in charge of the master servicing function shall serve as the
Certifying Person on behalf of the Trust. Such officer of the
Certifying Person can be contacted by email at [email address]. In
the event the Master Servicer, the Securities Administrator or any Servicing
Function Participant engaged by such parties is terminated or resigns pursuant
to the terms of this Agreement, or any applicable sub-servicing agreement,
as
the case may be, such party shall provide a Back-up Certification to the
Certifying Person pursuant to this Section 3.22(e)
with respect to the period of time it was subject to this Agreement or any
applicable sub-servicing agreement, as the case may
be. Notwithstanding the foregoing, (i) the Master Servicer and
the Securities Administrator shall not be required to deliver a Back-Up
Certification to each other if both are the same Person and the Master Servicer
is the Certifying Person and (ii) the Master Servicer shall not be
obligated to sign the Xxxxxxxx-Xxxxx Certification in the event that it does
not
receive any Back-Up Certification required to be furnished to it pursuant to
this Section or any Servicing Agreement or Custodial Agreement.
(f) Pursuant
to the related Servicing Agreements, the Master Servicer shall enforce the
obligation of each Servicer to provide the Back-up Certification required
pursuant to each of the Servicing Agreements.
(g) Upon
any
filing with the Commission prepared and filed by the Securities Administrator,
the Securities Administrator shall make available to the Depositor a copy of
any
such executed report, statement or information.
(h) (i) The
obligations set forth in paragraphs (a) through (h) of this
Section shall only apply with respect to periods for which reports are
required to be filed with respect to the Trust under the Exchange
Act. On or prior to January 30 of the first year in which the
Securities Administrator is able to do so under applicable law, unless otherwise
requested by the Depositor, the Securities Administrator shall prepare and
file
with the Commission a Form 15 Suspension Notification executed by the Master
Servicer with respect to the Trust, with a copy to the Depositor. At
the beginning of the calendar year after the filing of a Form 15 Suspension
Notification, if the Depositor or the Certificate Registrar determines that
the
number of
75
Certificateholders
of the Offered Certificates of record exceeds the number set forth in
Section 15(d) of the Exchange Act or the regulations promulgated
pursuant thereto which would cause the Trust to again become subject to the
reporting requirements of the Exchange Act, it shall promptly notify the
Securities Administrator and the Securities Administrator shall recommence
preparing and filing reports on Form 8-K, Form 10-D and Form 10-K as required
pursuant to this Section and the then-current reporting requirements of the
Exchange Act and the parties hereto will again have the obligations set forth
in
paragraphs (a) through (h) of this Section.
(ii) In
the
event that the Securities Administrator is unable to timely file with the
Commission all or any required portion of any Form 8-K, Form 10-D or Form 10-K
required to be filed by this Agreement because required disclosure information
was either not delivered to it or delivered to it after the delivery deadlines
set forth in this Agreement or for any other reason, the Securities
Administrator will immediately electronically notify the Depositor and the
Master Servicer of such inability to make a timely filing with the
Commission. In the case of Form 10-D and Form 10-K, the Securities
Administrator, the Master Servicer, the Trustee and the Depositor will cooperate
to prepare and file a Form 12b-25 and a Form 10-D/A and Form 10-K/A as
applicable, pursuant to Rule 12b-25 of the Exchange Act. In the case
of Form 8-K, the Securities Administrator will, upon receipt of all required
Form 8-K Disclosure Information and upon the approval and direction of the
Depositor, include such disclosure information on the next Form
10-D. In the event that any previously filed Form 8-K, Form 10-D or
Form 10-K needs to be amended in connection with any Additional Form 10-D
Disclosure (other than, in the case of Form 10-D, for the purpose of restating
any Monthly Statement), Additional Form 10-K Disclosure or Form 8-K Disclosure
Information, the Securities Administrator will notify the Depositor within
one
calendar day of discovery and such other parties to the transaction as are
affected by such amendment, and such parties will cooperate to prepare any
necessary Form 8-K/A, Form 10-D/A or Form 10-K/A. Any Form 15, Form
12b-25 or any amendment to Form 8-K or Form 10-D shall be signed by a duly
authorized officer (and a senior officer with respect to the Form 10-K) of
the
Master Servicer. The parties to this Agreement acknowledge that the
performance by the Master Servicer and the Securities Administrator of their
duties under this Section 3.22(h) related
to the timely preparation, arrangement for execution and filing of Form 15,
a
Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K is contingent
upon each such party performing its duties under this Section 3.22(h). Neither
the Master Servicer nor the Securities Administrator shall have any liability
for any loss, expense, damage, claim arising out of or with respect to any
failure to properly prepare, arrange for execution and/or timely file any such
Form 15, Form 12b-25 or any amendments to Forms 8-K, Form 10-D or Form 10-K,
where such failure results from the Securities Administrator’s inability or
failure to receive, on a timely basis, any information from any other party
hereto or any Servicer, the Custodian or any Servicing Function Participant
needed to prepare, arrange for execution or file such Form 15, Form 12b-25
or
any amendments to Forms 8-K, Form 10-D or Form 10-K, not resulting from its
own
negligence, bad faith or willful misconduct.
76
(i) Notwithstanding
the provision of Section 11.01,
this Section 3.22 may
be amended without the consent of the Certificateholders.
ARTICLE
IV
MASTER
SERVICER’S CERTIFICATE
Section
4.01 Master
Servicer’s
Certificate.
Each
month, not later than 12:00 noon Eastern time on the [__]th calendar day of
such month (or if such day is not a Business Day, the following Business Day),
the Master Servicer shall deliver to the Securities Administrator, a Master
Servicer’s Certificate based solely on the information provided by the Servicers
(in substance and format mutually acceptable to the Master Servicer and the
Securities Administrator) certified by a Master Servicing Officer setting forth
the information necessary in order for the Securities Administrator to perform
its obligations under this Agreement. The Securities Administrator
may conclusively rely upon the information contained in a Master Servicer’s
Certificate delivered by the Master Servicer for all purposes hereunder and
shall have no duty to verify or re-compute any of the information contained
therein.
ARTICLE
V
PAYMENTS
AND STATEMENTS TO CERTIFICATEHOLDERS;REMIC ADMINISTRATION
Section
5.01 Distributions.
On
each
Distribution Date, based solely on the information in the Servicer’s
Certificate, the Securities Administrator shall distribute or be deemed to
distribute out of the Certificate Account, the Lower-Tier Certificate
Sub-Account, the Middle-Tier Certificate Sub-Account or the Upper-Tier
Certificate Sub-Account, as applicable (to the extent funds are available
therein), to each Certificateholder of record on the related Record Date (other
than as provided in Section 10.01
respecting the final distribution) (a) by check mailed to such
Certificateholder entitled to receive a distribution on such Distribution Date
at the address appearing in the Certificate Register, or (b) upon written
request by the Holder of a Certificate (other than the Residual Certificate),
by
wire transfer or by such other means of payment as such Certificateholder and
the Securities Administrator shall agree upon, such Certificateholder’s
Percentage Interest in the amount to which the related Class of
Certificates is entitled in accordance with the priorities set forth below
in
Section 5.02.
None
of
the Holders of any Class of Certificates, the Depositor, the Master
Servicer, the Securities Administrator or the Trustee shall in any way be
responsible or liable to Holders of any Class of Certificates in respect of
amounts properly previously distributed on any such Class.
Amounts
distributed with respect to any Class of Certificates shall be applied
first to the distribution of interest thereon and then to principal
thereon.
77
Section
5.02 Priorities
of Distributions
on the Certificates .
(a) On
each
Distribution Date, the Securities Administrator shall withdraw from the
Certificate Account (to the extent funds are available therein) (1) to the
extent not previously paid, the amounts payable to the Master Servicer, the
Securities Administrator and the Trustee pursuant to Section 3.09(e) and
(f) and Section 3.11 and
shall pay such funds to itself, the Master Servicer and the Trustee, as
applicable, and (2) based solely on the information contained in the Master
Servicer’s Certificate, the Pool Distribution Amount (after the payment of the
Servicing Fees for such Mortgage Loans and expenses and indemnities reimbursable
pursuant to this Agreement, in each case to the extent not previously retained
by or distributed to a Servicer, the Securities Administrator, the Master
Servicer or the Trustee) for each Loan Group, and shall apply such funds, first,
to distributions in respect of the Uncertificated Lower-Tier Interests, and
then
to the Uncertificated Middle-Tier Interests as specified in this Section 5.02(a) and
then to distributions on the Certificates, 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, paying Group 3 solely from the Pool
Distribution Amount for Loan Group 3, paying Group 4 solely from the Pool
Distribution Amount for Loan Group 4, paying the Class X-X Certificates from
the
remaining aggregate Pool Distribution Amount from Loan Group J and paying the
Class X-B Certificates from the remaining aggregate Pool Distribution Amount
from Loan Group X in the following order of priority and to the extent of such
funds:
(i) to
each
Class of Senior Certificates, an amount allocable to interest equal to the
Interest Distribution Amount for the related Class and any shortfall being
allocated among the related Classes in proportion to the amount of the Interest
Distribution Amount that would have been distributed in the absence of such
shortfall;
(ii) to
each
Class of Senior Certificates, in an aggregate amount up to the Senior
Principal Distribution Amount for the related Group, such distribution to be
allocated among such Classes in accordance with Section 5.02(b);
(iii) concurrently,
as follows:
(A) to
each
Class of Class X-X Certificates, subject to paragraph (d) below, in the
following order of priority:
(1) to
the
Class X-X-1 Certificates, an amount allocable to interest equal to the
Interest Distribution Amount for such Class for such Distribution
Date;
(2) to
the
Class X-X-1 Certificates, an amount allocable to principal equal to its Pro
Rata Share for such Distribution Date until the Class Certificate Balance
thereof has been reduced to zero;
(3) to
the
Class X-X-2 Certificates, an amount allocable to interest equal to the
Interest Distribution Amount for such Class for such Distribution
Date;
78
(4) to
the
Class X-X-2 Certificates, an amount allocable to principal equal to its Pro
Rata Share for such Distribution Date until the Class Certificate Balance
thereof has been reduced to zero;
(5) to
the
Class X-X-3 Certificates, an amount allocable to interest equal to the
Interest Distribution Amount for such Class for such Distribution
Date;
(6) to
the
Class X-X-3 Certificates, an amount allocable to principal equal to its Pro
Rata Share for such Distribution Date until the Class Certificate Balance
thereof has been reduced to zero;
(7) to
the
Class X-X-4 Certificates, an amount allocable to interest equal to the
Interest Distribution Amount for such Class for such Distribution
Date;
(8) to
the
Class X-X-4 Certificates, an amount allocable to principal equal to its Pro
Rata Share for such Distribution Date until the Class Certificate Balance
thereof has been reduced to zero;
(9) to
the
Class X-X-5 Certificates, an amount allocable to interest equal to the
Interest Distribution Amount for such Class for such Distribution
Date;
(10) to
the
Class X-X-5 Certificates, an amount allocable to principal equal to its Pro
Rata
Share for such Distribution Date until the Class Certificate Balance
thereof has been reduced to zero;
(11) to
the
Class X-X-6 Certificates, an amount allocable to interest equal to the
Interest Distribution Amount for such Class for such Distribution
Date;
(12) to
the
Class X-X-6 Certificates, an amount allocable to principal equal to its Pro
Rata Share for such Distribution Date until the Class Certificate Balance
thereof has been reduced to zero; and
(B) to
each
Class of Class X-B Certificates, subject to paragraph (d) below, in the
following order of priority:
(1) to
the
Class X-B-1 Certificates, an amount allocable to interest equal to the Interest
Distribution Amount for such Class for such Distribution Date;
(2) to
the
Class X-B-1 Certificates, an amount allocable to principal equal to its Pro
Rata Share for such Distribution Date until the Class Certificate Balance
thereof has been reduced to zero;
79
(3) to
the
Class X-B-2 Certificates, an amount allocable to interest equal to the
Interest Distribution Amount for such Class for such Distribution
Date;
(4) to
the
Class X-B-2 Certificates, an amount allocable to principal equal to its Pro
Rata Share for such Distribution Date until the Class Certificate Balance
thereof has been reduced to zero;
(5) to
the
Class X-B-3 Certificates, an amount allocable to interest equal to the
Interest Distribution Amount for such Class for such Distribution
Date;
(6) to
the
Class X-B-3 Certificates, an amount allocable to principal equal to its Pro
Rata Share for such Distribution Date until the Class Certificate Balance
thereof has been reduced to zero;
(7) to
the
Class X-B-4 Certificates, an amount allocable to interest equal to the
Interest Distribution Amount for such Class for such Distribution
Date;
(8) to
the
Class X-B-4 Certificates, an amount allocable to principal equal to its Pro
Rata Share for such Distribution Date until the Class Certificate Balance
thereof has been reduced to zero;
(9) to
the
Class X-B-5 Certificates, an amount allocable to interest equal to the
Interest Distribution Amount for such Class for such Distribution
Date;
(10) to
the
Class X-B-5 Certificates, an amount allocable to principal equal to its Pro
Rata Share for such Distribution Date until the Class Certificate Balance
thereof has been reduced to zero;
(11) to
the
Class X-B-6 Certificates, an amount allocable to interest equal to the
Interest Distribution Amount for such Class for such Distribution
Date;
(12) to
the
Class X-B-6 Certificates, an amount allocable to principal equal to its 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 2-A-R Certificate (in respect of the Class UR
Interest, the Class MR Interest or the Class LR Interest, as
applicable), any amounts remaining in the Upper-Tier Certificate Sub-Account,
the Middle-Tier Certificate Sub-Account and the Lower-Tier Certificate
Sub-Account and any remaining Pool Distribution Amounts.
80
No
Class of Certificates will be entitled to any distributions with respect to
the amount payable pursuant to clause (ii) of the definition of
“Interest Distribution Amount” after its Class Certificate Balance or
Notional Amount has been reduced to zero.
All
distributions in respect of the Interest Distribution Amount for a
Class will be applied first with respect to the amount payable pursuant to
clause (i) of the definition of “Interest Distribution Amount” and
second with respect to the amount payable pursuant to clause (ii) of
such definition.
On
each
Distribution Date, the Securities Administrator shall distribute any
Reimbursement Amount received with respect to each Loan Group sequentially
to
each related Class of Certificates then outstanding which bore the loss to
which
such Reimbursement Amount relates, beginning with the most senior of such
Classes of Certificates, up to, with respect to each Class, the amount of loss
borne by such Class. Any Reimbursement Amount remaining after the
application described in the preceding sentence shall be included in the Pool
Distribution Amount for the applicable Loan Group.
Distributions
on the Uncertificated
Lower-Tier Interests. On each Distribution Date,
Uncertificated Accrued Interest shall be deemed distributed in respect of the
Uncertificated Lower-Tier Interests at the Uncertificated Lower-Tier REMIC
Pass-Through Rate thereon, plus any amounts in respect thereof remaining unpaid
from previous Distribution Dates. For purposes of calculating
Uncertificated Accrued Interest in respect of each Uncertificated Lower-Tier
Interest and any Distribution Date, Non-Supported Interest Shortfalls and Relief
Act Reductions with respect to the Mortgage Loans shall be allocated to the
related Uncertificated Lower-Tier Interest in the same relative proportions
as
interest is allocated to such Uncertificated Lower-Tier Interest. Any
Non-Supported Interest Shortfalls and Relief Act Reductions allocated to the
Uncertificated Lower-Tier Interests pursuant to this paragraph shall be (a)
from
Non-Supported Interest Shortfalls and Relief Act Reductions allocated to Loan
Group J in the case of Uncertificated Lower-Tier Interests beginning with the
numeral “1” and “2” and (b) from Non-Supported Interest Shortfalls and Relief
Act Reductions allocated to Loan Group X in the case of Uncertificated
Lower-Tier Interests beginning with the numeral “3” and “4.”
All
distributions of principal shall be made first, to the Class 1-LS Interest,
the
Class 2-LS Interest, the Class 3-LS Interest and the Class 4-LS Interest, so
as
to keep the Uncertificated Balances thereof (computed to eight decimal places)
equal to 0.100% of the Group Subordinate Amount for Loan Group 1, Loan Group
2,
Loan Group 3 and Loan Group 4, respectively (except that if any such amount
is
greater than on the preceding Distribution Date, the least amount of principal
shall be distributed to the Class 1-LS Interest, the Class 2-LS Interest, the
Class 3-LS Interest and the Class 4-LS Interest, such that the Subordinate
Balance Ratio is maintained), and second, any remaining principal to the Class
1-L Interest, Class 2-L Interest, Class 3-L Interest and Class 4-L
Interest. Any distributions of principal made to the Uncertificated
Lower-Tier Interests pursuant to this paragraph shall be made from the Group
1
Mortgage Loans to the Uncertificated Lower-Tier Interests beginning with the
numeral “1,” from the Group 2 Mortgage Loans to the Uncertificated Lower-Tier
Interests beginning with the numeral “2,” from the Group 3 Mortgage Loans to the
Uncertificated Lower-Tier Interests beginning with the numeral “3” and from the
Group 4 Mortgage Loans to the Uncertificated Lower-Tier Interests beginning
with
the numeral “4.”
81
Realized
Losses shall be applied after all distributions have been made on each
Distribution Date first, to the Class 1-LS Interest, the Class 2-LS Interest,
the Class 3-LS Interest and the Class 4-LS Interest so as to keep the
Uncertificated Balances thereof (computed to eight decimal places) equal to
0.100% of the Group Subordinate Amount for Loan Group 1, Loan Group 2, Loan
Group 3 and Loan Group 4, respectively (except that if any such amount is
greater than on the preceding Distribution Date, the least amount of Realized
Losses shall be allocated to the Class 1-LS Interest, the Class 2-LS Interest,
the Class 3-LS Interest and the Class 4-LS Interest such that the Subordinate
Balance Ratio is maintained); and second, the remaining Realized Losses shall
be
allocated to the Class 1-L Interest, Class 2-L Interest, Class 3-L Interest
and
Class 4-L Interest. Any Realized Losses allocated to the
Uncertificated Lower-Tier Interests pursuant to this paragraph shall be from
Realized Losses allocated to Loan Group 1 in the case of Uncertificated
Lower-Tier Interests beginning with the numeral “1,” from Realized Losses
allocated to Loan Group 2 in the case of Uncertificated Lower-Tier Interests
beginning with the numeral “2,” from Realized Losses allocated to Loan Group 3
in the case of Uncertificated Lower-Tier Interests beginning with the numeral
“3,” and from Realized Losses allocated to the Loan Group 4 Mortgage Loans to
the Uncertificated Lower-Tier Interests beginning with the numeral
“4.”
Recoveries
and Reimbursement Amounts received with respect to the Loan Groups shall be
applied to the Uncertificated Lower-Tier Interests in a manner analogous to
the
application of Realized Losses to the Uncertificated Lower-Tier
Interests.
As
of any
date, the aggregate Uncertificated Balance of the Class 1-L Interest and the
Class 1-LS Interest shall equal the Pool Principal Balance of Loan Group
1. As of any date, the aggregate Uncertificated Balance of the Class
2-L and Class 2-LS Interest shall equal the Pool Principal Balance of Loan
Group
2. As of any date, the aggregate Uncertificated Balance of the Class
3-L and Class 3-LS Interest shall equal the Pool Principal Balance of Loan
Group
3. As of any date, the aggregate Uncertificated Balance of the Class
4-L and Class 4-LS Interest shall equal the Pool Principal Balance of Loan
Group
4.
Amounts
distributed to the Uncertificated Lower-Tier Interests in respect of principal
and interest with respect to any Distribution Date are referred to herein
collectively as the “Lower-Tier
Distribution Amount.”
Distributions
on the Uncertificated
Middle-Tier Interests. On each Distribution Date, each
Uncertificated Middle-Tier Interest shall receive distributions in respect
of
principal in an amount equal to the amount of principal distributed to its
respective Corresponding Class or Classes of Certificates as provided herein
and
shall have its principal balance increased in the event of Recoveries, in an
amount equal to any such increase in the Class Certificate Balance of the
respective Corresponding Class or Classes of Certificates. On each
Distribution Date, each Uncertificated Middle-Tier Interest shall receive
distributions in respect of interest based on its Uncertificated Middle-Tier
REMIC Pass-Through Rate based on its Uncertificated Balance or Notional Amount
in an amount equal to the Uncertificated Accrued Interest of such class, and
any
amounts undistributed from prior Distribution Dates, which amount shall equal
the Interest Distribution Amount in respect of its Corresponding Class or
Classes of Certificates in each case to the extent actually distributed
thereon. Such amounts distributed to the Uncertificated
Middle-
82
Tier
Interests in respect of principal and interest with respect to any Distribution
Date are referred to herein collectively as the “Middle-Tier
Distribution Amount.”
As
of any
date, the Uncertificated Balance or Notional Amount of each Uncertificated
Middle-Tier Interest equals the aggregate of the Class Certificate Balances
or
Notional Amounts of the respective Corresponding Class or Classes of
Certificates or in the case of the Class MRI-3A1 Interest, the aggregate Class
Certificate Balance of the Class 3-A-1, Class 3-A-2 and Class 3-A-3
Certificates. The initial Uncertificated Balance of each
Uncertificated Middle-Tier Interest equals the aggregate of the Initial Class
Certificate Balances or Initial Notional Amounts of the respective Corresponding
Class or Class of Certificates or in the case of the Class MRI-3A1 Interest,
the
aggregate Initial Class Certificate Balance of the Class 3-A-1, Class 3-A-2
and
Class 3-A-3 Certificates.
Distributions
on the Upper-Tier
Interests. Each Upper-Tier Regular Interest will be entitled
to receive interest and principal payments at the times and in the amounts
equal
to those made on the Certificate to which it corresponds.
(b) (i) With
respect to Group 1:
On
each
Distribution Date prior to the Senior Credit Support Depletion Date for Group
J,
the amount distributable to Group 1 pursuant to Section 5.02(a)(ii) for
such Distribution Date, will be distributed, concurrently, to the Class 1-A-1
and Class 1-A-2 Certificates, pro rata, until their Class
Certificate Balances have been reduced to zero.
(ii) With
respect to Group 2:
On
each
Distribution Date prior to the Senior Credit Support Depletion Date for Group
J,
the amount distributable to Group 2 pursuant to Section 5.02(a)(ii)
for such Distribution Date, will be distributed, sequentially, as
follows:
first,
to the Class 2-A-R
Certificate, until its Class Certificate Balance has been reduced to zero;
and
second,
concurrently, to the
Class 2-A-1 and Class 2-A-2 Certificates, pro rata, until their Class
Certificate Balances have been reduced to zero.
(iii) With
respect to Group 3:
On
each
Distribution Date prior to the Senior Credit Support Depletion Date for Group
X,
the amount distributable to Group 3 pursuant to Section 5.02(a)(ii) for
such Distribution Date, will be distributed, concurrently, to the Class 3-A-1,
Class 3-A-2 and Class 3-A-3 Certificates, pro rata, until their Class
Certificate Balances have been reduced to zero.
(iv) With
respect to Group 4:
On
each
Distribution Date prior to the Senior Credit Support Depletion Date for Group
X,
the amount distributable to Group 4 pursuant to Section 5.02(a)(ii) for
such
83
Distribution
Date, will be distributed, concurrently, to the Class 4-A-1, Class 4-A-2 and
Class 4-A-3 Certificates, pro
rata, until their Class Certificate Balances have been reduced to
zero.
(v) On
each
Distribution Date on or after the applicable Senior Credit Support Depletion
Date, notwithstanding the allocation and priority set forth above, the portion
of the Pool Distribution Amount with respect to a Loan Group available to be
distributed as principal of the Senior Certificates of the Related Group shall
be distributed concurrently, as principal, on such Classes, pro rata, on the basis of
their respective Class Certificate Balances, until the
Class Certificate Balances thereof are reduced to zero.
The
Class
3-A-4 Certificates are Interest Only Certificates and are not entitled to
distributions in respect of principal.
(vi) Notwithstanding
the foregoing, on each Distribution Date prior to the Senior Credit Support
Depletion Date for Group J or Group X, as the case may be, but on or after
the
date on which the aggregate Class Certificate Balance of the Senior
Certificates of a Group in Group J or Group X, as applicable, has been reduced
to zero, amounts otherwise distributable from the Unscheduled Principal Amounts
with respect to the Related Loan Group on the related Subordinated Certificates
will be paid as principal to the remaining Classes of Senior Certificates of
the
other Groups in Group J or Group X, as the case may be, together with the
applicable Senior Principal Distribution Amount in accordance with the
priorities set forth for the applicable Group in clause (b)(i), (ii), (iii)
and
(iv) above, provided that on such Distribution Date (a) the Total
Subordinate Percentage with respect to Loan Group J or Loan Group X for such
Distribution Date is less than twice the initial Total Subordinate Percentage
for Loan Group J or Loan Group X, as the case may be, (b) the outstanding
principal balance of all Group J Mortgage Loans or Group X Mortgage Loans,
as
applicable (including, for this purpose, any such Mortgage Loan in foreclosure
or any related REO Property, any such Mortgage Loan for which the mortgagor
has
filed for bankruptcy and any such Mortgage Loan that was the subject of a
Servicer Modification within twelve months prior to such Distribution Date)
delinquent sixty (60) days or more (averaged over the preceding six month
period), as a percentage of the aggregate Class Certificate Balance of the
related Subordinated Certificates, is greater than or equal to
50%. If the Senior Certificates of two or more Groups in Group J or
Group X, as applicable, remain outstanding, the distributions described above
will be made to the Senior Certificates of such Groups, pro rata, in proportion to
the aggregate Class Certificate Balance of the Senior Certificates of each
such Group. In addition, after giving effect to the second preceding
sentence, if on any Distribution Date the aggregate Class Certificate
Balance of the Senior Certificates of a Group is greater than the Adjusted
Pool
Amount of the Related Loan Group (any such Group, the “Undercollateralized
Group” and any such excess, the “Undercollateralized
Amount”), all amounts otherwise distributable as principal on the
Subordinated Certificates pursuant to Sections
5.02(a)(iii)(A)(12), (10),
(8),
(6),
(4) and
(2)
(with respect to
the Class X-X Certificates) or Sections
5.02(a)(iii)(B)(12), (10),
(8),
(6),
(4) and
(2)
(with respect to
the Class X-B Certificates), in that order, will be paid as principal to the
Senior Certificates of the Undercollateralized Group together with the
applicable
84
Senior
Principal Distribution Amount in accordance with the priorities set forth for
the applicable Group above under (i), (ii), (iii), (iv), (v), (vi), (vii),
(viii), (ix), (x), (xi) or (xii) until the aggregate Class Certificate
Balance of the Senior Certificates of the 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
Undercollateralized Group (including any Class Unpaid Interest Shortfalls
for such Distribution Date) will be paid to the Undercollateralized Group prior
to the payment of any Undercollateralized Amount from amounts otherwise
distributable as principal on the related Subordinated Certificates pursuant
to
Sections
5.02(a)(iii)(A)(12), (10),
(8),
(6),
(4) and
(2)
(with respect to
the Class X-X Certificates) or Sections
5.02(a)(iii)(B)(12), (10),
(8),
(6),
(4) and
(2)
(with respect to
the Class X-B Certificates), in that order; such amount will be paid to the
Senior Certificates of such Undercollateralized Group up to their Interest
Distribution Amounts for such Distribution Date. If two or more
Groups in Group J or Group X are Undercollateralized Groups, the distributions
described above will be made, pro rata, in proportion to
their Undercollateralized Amounts.
(c) On
each
Distribution Date, Accrued Certificate Interest for each Class of
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 the sum of (A) Non-Supported Interest Shortfalls on the Mortgage Loans
in Loan Group J or Loan Group X, as the case may be, (B) on and after the
related Senior Credit Support Depletion Date, any other Realized Losses on
the
Mortgage Loans in the Related Loan Group or Related Loan Groups allocable to
interest and (C) Relief Act Reductions incurred on the Mortgage Loans in
Loan Group J or Loan Group X, as the case may be.
(d) Notwithstanding
the priority and allocation contained in Section 5.02(a)(iii),
if with respect to any Class of Subordinated Certificates on any
Distribution Date, (i) the aggregate of the Class Certificate Balances
immediately prior to such Distribution Date of all Classes of Class X-X
Certificates or Class X-B Certificates, as the case may be, which have a lower
payment priority than such Class, divided by (ii) the aggregate Pool
Principal Balance for Loan Group J or Loan Group X, as applicable, immediately
prior to such Distribution Date (for each Class, the “Fractional
Interest”) is less than the Original Fractional Interest for such Class,
no distribution of principal in respect of clause (ii) of the Subordinate
Principal Distribution Amounts will be made to any Classes of related
Subordinated Certificates which have a lower payment priority than such
Class (the “Restricted
Classes”) and the Class Certificate Balances of the Restricted
Classes of related Subordinated Certificates will not be used in determining
the
Pro Rata Share for the Subordinated Certificates that are not Restricted
Classes. If the aggregate Class Certificate Balances of the
related Subordinated Certificates that are not Restricted Classes are reduced
to
zero, notwithstanding the previous sentence, any funds remaining will be
distributed sequentially to the related Subordinated Certificates that are
Restricted Classes of such Related Group in order of their respective numerical
Class designations (beginning with the Class of related Subordinated
Certificates that is a Restricted Class then outstanding with the highest
payment priority).
Section
5.03
[Reserved].
85
Section
5.04 Allocation
of
Losses.
(a) No
later
than five (5) Business Days prior to the related Distribution Date, the
Master Servicer shall inform the Securities Administrator in writing with
respect to each Mortgage Loan: (1) whether any Realized Loss is a Deficient
Valuation, a Debt Service Reduction or the result of a Servicer Modification,
(2) of the amount of such loss or Deficient Valuation, the terms of such
Debt Service Reduction or the reduction in the unpaid principal balance of
a
Mortgage Loan due to a Servicer Modification and (3) with respect to each
Loan Group, the sum, with respect to each Mortgage Loan in each Group, of the
amount of Realized Losses on such Mortgage Loan. Based on such
information, the Securities Administrator shall determine the total amount
of
Realized Losses on the Mortgage Loans 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 of Certificates, pursuant to the operation of Section
5.04(b).
(b) The
Class Certificate Balance of the Class of Class X-X Certificates or
Class X-B Certificates, as the case may be, 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 related Senior
Certificates and related Subordinated 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 all Loan Groups in Loan
Group J or Loan Group X, as applicable, for such Distribution Date.
After
the
Senior Credit Support Depletion Date for Group J or Group X, as the case may
be,
the Class Certificate Balances of the Senior Certificates of each Related
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 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
Group based on the Class Certificate Balances immediately prior to such
Distribution Date until the Class Certificate Balances thereof have been
reduced to zero. Realized Losses allocated to the Class 3-A-1, Class
3-A-2 and Class 3-A-3 Certificates will reduce the Class 3-A-4 Notional
Amount.
(c) Any
reduction or increase in the Class Certificate Balance of a Class of
Certificates pursuant to Section 5.04(b) above
shall be allocated among the Certificates of such Class in proportion to
their respective Percentage Interests.
(d) The
calculation of the amount to be distributed as principal to any Class of
Subordinated Certificates with respect to a Distribution Date (the “Calculated
Principal Distribution”) shall be made prior to the allocation of any
Realized Losses for such Distribution Date; provided, however,
the actual payment
of principal to the Classes of Subordinated Certificates shall be made
subsequent to the allocation of Realized Losses for such
Distribution
86
Date. In
the event that after the allocation of Realized Losses for a Distribution Date,
the Calculated Principal Distribution for a Class of Subordinated
Certificates is greater than the Class Certificate Balance of such Class,
the excess shall be distributed (i) first, sequentially, to the Classes of
related Subordinated Certificates then outstanding (beginning with the
Class of related Subordinated Certificates then outstanding with the lowest
numerical designation) until the respective Class Certificate Balance of
each such Class is reduced to zero and (ii) then to the Senior
Certificates of the Related Group, pro rata, in accordance with
the priorities set forth in Section 5.02.
(e) After
the
Senior Credit Support Depletion Date for Group J or Group X, as the case may
be:
(i) On
any
Distribution Date on which the Class 1-A-2 Loss Allocation Amount is
greater than zero, the Class Certificate Balance of the Class 1-A-2
Certificates will be reduced by the Class 1-A-2 Loss Allocation Amount and,
notwithstanding Section 5.04(b), the
Class Certificate Balance of the Class 1-A-1 Certificates will not be
reduced by the Class 1-A-2 Loss Allocation Amount. Any increase
in the Class Certificate Balance allocated to the Class 1-A-1
Certificates pursuant to Section
5.04(b) will instead increase the Class Certificate Balance of
the Class 1-A-2 Certificates.
(ii) On
any
Distribution Date on which the Class 2-A-2 Loss Allocation Amount is
greater than zero, the Class Certificate Balance of the Class 2-A-2
Certificates will be reduced by the Class 2-A-2 Loss Allocation Amount and,
notwithstanding Section 5.04(b), the
Class Certificate Balance of the Class 2-A-1 Certificates will not be
reduced by the Class 2-A-2 Loss Allocation Amount. Any increase
in the Class Certificate Balance allocated to the Class 2-A-1
Certificates pursuant to Section
5.04(b) will instead increase the Class Certificate Balance of
the Class 2-A-2 Certificates.
(iii) On
any
Distribution Date on which the Class 3-A-2 Loss Allocation Amount is
greater than zero, the Class Certificate Balance of the Class 3-A-2
Certificates will be reduced by the Class 3-A-2 Loss Allocation Amount and,
notwithstanding Section 5.04(b), the
Class Certificate Balance of the Class 3-A-1 Certificates will not be
reduced by the Class 3-A-2 Loss Allocation
Amount. Notwithstanding the foregoing, on any Distribution Date in
which the Class 3-A-1 Loss Amount exceeds the Class Certificate Balance of
the
Class 3-A-2 Certificates prior to any reduction for the Class 3-A-2 Loss
Allocation Amount, such excess will be distributed in reduction of the Class
Certificate Balance of the Class 3-A-1 Certificates. On or after any
Distribution Date on which the Class 3-A-2 Loss Allocation Amount is greater
than zero, any increase in the Class Certificate Balance allocated to the Class
3-A-1 Certificates pursuant to Section 5.04(b) will
instead increase the Class Certificate Balance of the Class 3-A-2
Certificates.
(iv) On
any
Distribution Date on which the Class 3-A-3 Loss Allocation Amount is greater
than zero, the Class Certificate Balance of the Class 3-A-3 Certificates will
be
reduced by the Class 3-A-3 Loss Allocation Amount and, notwithstanding Section
5.04(b)(i), the Class Certificate Balances of the Class 3-A-1 and Class 3-A-2
Certificates will not be reduced by the Class 3-A-3 Loss Allocation
Amount. Notwithstanding the foregoing, on any Distribution Date in
which the sum of the Class 3-A-1 Loss Amount
87
and
the
Class 3-A-2 Loss Amount exceeds the Class Certificate Balance of the Class
3-A-3
Certificates prior to any reduction for the Class 3-A-3 Loss Allocation Amount,
such excess will be distributed in reduction of the Class Certificate Balance
of
the Class 3-A-2 Certificates. Any increase in the Class Certificate
Balance allocated to the Class 3-A-1 or Class 3-A-2 Certificates pursuant to
Section 5.04(b)
will instead increase the Class Certificate Balance of the Class 3-A-3
Certificates.
(v) On
any
Distribution Date on which the Class 4-A-2 Loss Allocation Amount is
greater than zero, the Class Certificate Balance of the Class 4-A-2
Certificates will be reduced by the Class 4-A-2 Loss Allocation Amount and,
notwithstanding Section 5.04(b), the
Class Certificate Balance of the Class 4-A-1 Certificates will not be
reduced by the Class 4-A-2 Loss Allocation
Amount. Notwithstanding the foregoing, on any Distribution Date in
which the Class 4-A-1 Loss Amount exceeds the Class Certificate Balance of
the
Class 4-A-2 Certificates prior to any reduction for the Class 4-A-2 Loss
Allocation Amount, such excess will be distributed in reduction of the Class
Certificate Balance of the Class 4-A-1 Certificates. On or after any
Distribution Date on which the Class 4-A-2 Loss Allocation Amount is greater
than zero, any increase in the Class Certificate Balance allocated to the Class
4-A-1 Certificates pursuant to Section 5.04(b) will
instead increase the Class Certificate Balance of the Class 4-A-2
Certificates.
(vi) On
any
Distribution Date on which the Class 4-A-3 Loss Allocation Amount is greater
than zero, the Class Certificate Balance of the Class 4-A-3 Certificates will
be
reduced by the Class 4-A-3 Loss Allocation Amount and, notwithstanding Section
5.04(b)(i), the Class Certificate Balances of the Class 4-A-1 and Class 4-A-2
Certificates will not be reduced by the Class 4-A-3 Loss Allocation
Amount. Notwithstanding the foregoing, on any Distribution Date in
which the sum of the Class 4-A-1 Loss Amount and the Class 4-A-2 Loss Amount
exceeds the Class Certificate Balance of the Class 4-A-3 Certificates prior
to
any reduction for the Class 4-A-3 Loss Allocation Amount, such excess will
be
distributed in reduction of the Class Certificate Balance of the Class 4-A-2
Certificates. Any increase in the Class Certificate Balance allocated
to the Class 4-A-1 or Class 4-A-2 Certificates pursuant to Section 5.04(b) will
instead increase the Class Certificate Balance of the Class 4-A-3
Certificates.
(f) With
respect to any Distribution Date, Realized Losses allocated pursuant to Section 5.04(b)
will be allocated to each Uncertificated Lower-Tier Interest as described in
Section 5.02 and
to each Uncertificated Middle-Tier Interest in an amount equal to the Realized
Losses allocated to such Uncertificated Middle-Tier Interest’s Corresponding
Upper-Tier Class or Classes of Certificates.
Section
5.05 Statements
to
Certificateholders .
(a) Prior
to
the Distribution Date in each month, based upon the information provided to
the
Securities Administrator on the Master Servicer’s Certificate delivered to the
Securities Administrator pursuant to Section 4.01 and
with respect to subsections (xxii) and (xxiii)
below, after
consultation with the Depositor, the Securities Administrator shall determine
the following information with respect to the Certificates and such Distribution
Date:
88
(i)
the
actual Distribution Date, the related Record Date and the Interest Accrual
Period for each Class of Certificates for such Distribution Date;
(ii) for
each
Loan Group, the related Pool Distribution Amount;
(iii) for
each
Loan Group, the amount allocable to principal, separately identifying the
aggregate amount of any Principal Prepayments and Liquidation Proceeds included
therein;
(iv) for
each
Loan Group, the amount of the Pool Distribution Amount allocable to interest,
any Class Unpaid Interest Shortfall included in such distribution and any
remaining Class Unpaid Interest Shortfall after giving effect to such
distribution;
(v) the
Class
Certificate Balance of each Class of Certificates prior to and after giving
effect to the distribution of principal on such Distribution Date;
(vi) for
each
Loan Group, the Pool Principal Balance for the preceding Distribution Date
and
the related Distribution Date;
(vii) for
each
Loan Group, the Senior Percentage, the Senior Prepayment Percentage, the
Subordinate Percentage and the Subordinate Prepayment Percentage for such
Distribution Date;
(viii) the
Total
Senior Percentage and the Total Subordinate Percentage for each of Loan Group
J
and Loan Group X for such Distribution Date;
(ix) the
amount of the Servicing Fees paid to or retained by the Servicers with respect
to each Loan Group and such Distribution Date;
(x) the
Pass-Through Rate for each such Class of Certificates with respect to such
Distribution Date;
(xi) 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 the Determination Date immediately preceding such Distribution
Date;
(xii) the
number and aggregate principal amounts of the Mortgage Loans (A) delinquent
(exclusive of Mortgage Loans in foreclosure or bankruptcy) 31 to 60 days, 61
to
90 days and 91 or more days, (B) in foreclosure, as of the close of business
on
the last day of the calendar month preceding such Distribution Date and (C)
in
bankruptcy, as of the close of business on the last day of the calendar month
preceding such Distribution Date;
(xiii) with
respect to any Mortgage Loans that became REO Properties during the preceding
calendar month, the aggregate number of such Mortgage Loans and the aggregate
Stated Principal Balance of such Mortgage Loans as of the close of business
on
89
the
Determination Date preceding such Distribution Date and the date of acquisition
of the REO Properties;
(xiv) 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;
(xv) the
Class
3-A-4 Notional Amount for such Distribution Date;
(xvi) for
each
Loan Group, the aggregate amount of Realized Losses incurred during the
preceding calendar month;
(xvii) for
each
Loan Group, the Reimbursement Amount;
(xviii) for
each
Loan Group, the amount of Recoveries;
(xix) any
expenses or indemnification amounts paid by the Trust, the specific purpose
of
each payment and the parties to whom such payments were made;
(xx) any
material modifications, extensions or waivers to Mortgage Loan terms, fees,
penalties or payments since the previous Distribution Date;
(xxi) for
the
Mortgage Loans in each Loan Group, the number and aggregate Stated Principal
Balance, the weighted average Mortgage Interest Rate, the weighted average
remaining term, each as of the close of business on the last day of the calendar
month preceding such Distribution Date;
(xxii) unless
such information is otherwise set forth in the Form 10-D relating to such
Distribution Date and provided that the Securities Administrator is reasonably
able to include such information in the statement, material breaches of Mortgage
Loan representations and warranties of which the Securities Administrator has
knowledge or has received written notice;
(xxiii) unless
such information is otherwise set forth in the Form 10-D relating to such
Distribution Date and provided that the Securities Administrator is reasonably
able to include such information in the statement, material breaches of any
covenants under this Agreement of which the Securities Administrator has
knowledge or has received written notice;
(xxiv) for
each
Loan Group, the number and percentage (by aggregate Stated Principal Balance)
of
Mortgage Loans that were the subject of aServicer Modification since the
previous Distribution Date;
(xxv) for
each
Loan Group, the number and percentage (by aggregate Cut-off Date Principal
Balance) of Mortgage Loans that were the subject of a Servicer Modification
since the Closing Date;
90
(xxvi) for
each
Loan Group, the aggregate amount of principal forgiveness as a result of a
Servicer Modification since the previous Distribution Date;
(xxvii) for
each
Loan Group, the aggregate amount of principal forgiven in connection with any
Servicer Modifications since the Closing Date;
(xxviii) for
each
Loan Group, the percentage (by aggregate Stated Principal Balance) of Mortgage
Loans that were the subject of a Servicer Modification within twelve months
prior to the previous Distribution Date and are delinquent 60 days or more
(averaged over the preceding six-month period);
(xxix) for
each
Loan Group, a statement as to the delinquency status of Mortgage Loans that
were
the subject of a Servicer Modification since the Closing Date;
(xxx) for
each
Loan Group, the date of the most recent Servicer Modification; and
(xxxi) for
each
Loan Group, with respect to Mortgage Loans that were the subject of a Servicer
Modification, the Mortgage Interest Rate prior to such Servicer Modification
and
the Mortgage Interest Rate subsequent to such Servicer
Modification.
For
all
purposes of this Agreement, with respect to any Mortgage Loan, delinquencies
shall be determined and reported based on the so-called “MBA” methodology for
determining delinquencies on mortgage loans similar to the Mortgage
Loans. By way of example, a Mortgage Loan would be delinquent with
respect to a Monthly Payment due on a Due Date if such Monthly Payment is not
made by the close of business on the Mortgage Loan’s next succeeding Due Date,
and a Mortgage Loan would be more than 30-days delinquent with respect to such
Monthly Payment if such Monthly Payment were not made by the close of business
on the Mortgage Loan’s second succeeding Due Date.
(b)
No later
than each Distribution Date, the Securities Administrator, based upon
information supplied to it on the Master Servicer’s Certificate, shall make
available to each Holder of a Certificate, each Rating Agency and the Master
Servicer, a single statement setting forth the information set forth in Sections 5.05(a)
(a “Monthly
Statement”).
In
the
case of information furnished pursuant to clauses (iii) and (iv) of Section 5.05(a), the
amounts shall be expressed as a dollar amount per Certificate with a $1,000
denomination.
On
each
Distribution Date, the Securities Administrator shall prepare and make available
to each Financial Market Service, in electronic or such other format and media
mutually agreed upon by the Securities Administrator, the Financial Market
Service and the Depositor, the Distribution Date Statement.
The
Securities Administrator will make the Monthly Statement to Certificateholders
(and, at its option, any additional files containing the same or additional
information in an alternative format) available each month to Certificateholders
and other parties to this Agreement via the Securities Administrator’s Internet
website. The Securities Administrator’s Internet website
91
shall
initially be located at “[website
address].” Assistance in using the website can be obtained by
calling the Securities Administrator’s customer service desk at [phone
number]. Parties that are unable to use the website are entitled to
have a paper copy mailed to them via first class mail by calling the
customer service desk and indicating such. The Securities
Administrator shall have the right to change the way the Monthly Statements
to
Certificateholders are distributed in order to make such distribution more
convenient and/or more accessible to the above parties and the Securities
Administrator shall provide timely and adequate notification to all above
parties regarding any such changes.
Within
a
reasonable period of time after the end of each calendar year, the Securities
Administrator shall furnish to each Person who at any time during the calendar
year was the Holder of a Certificate, if requested in writing by such Person,
a
statement containing the information set forth in clauses (iii) and
(iv) of Section 5.05(a),
in each case aggregated for such calendar year or applicable portion thereof
during which such Person was a Certificateholder. Such obligation of
the Securities Administrator shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the
Securities Administrator pursuant to any requirements of the Code as from time
to time in force.
The
Securities Administrator shall deliver to the Holders of Certificates any
reports or information the Securities Administrator is required by this
Agreement or the Code, Treasury Regulations or REMIC Provisions to deliver
to
the Holders of Certificates, and the Securities Administrator shall prepare
and
provide to the Certificateholders (by mail, telephone, or publication as may
be
permitted by applicable Treasury Regulations) such other reasonable information
as the Securities Administrator deems necessary or appropriate or is required
by
the Code, Treasury Regulations, and the REMIC Provisions including, but not
limited to, (i) information to be reported to the Holder of the Residual
Certificate for quarterly notices on Schedule Q (Form 1066) (which
information shall be forwarded to the Holder of the Residual Certificate by
the
Securities Administrator), (ii) information to be provided to the Holders
of Certificates with respect to amounts which should be included as interest
and
original issue discount in such Holders’ gross income and (iii) information
to be provided to all Holders of Certificates setting forth the percentage
of
each REMIC’s assets, determined in accordance with Treasury Regulations using a
convention, not inconsistent with Treasury Regulations, selected by the
Securities Administrator in its absolute discretion, that constitute real estate
assets under Section 856 of the Code, and assets described in
Section 7701(a)(19)(C) of the Code; provided, however, that in
setting forth the percentage of such assets of each REMIC created hereunder,
nothing contained in this Agreement, including without limitation Section 7.03
hereof, shall be interpreted to require the Securities Administrator
periodically to appraise the fair market values of the assets of the Trust
Estate or to indemnify the Trust Estate or any Certificateholders from any
adverse federal, state or local tax consequences associated with a change
subsequently required to be made in the Depositor’s initial good faith
determinations of such fair market values (if subsequent determinations are
required pursuant to the REMIC Provisions) made from time to time.
92
Section
5.06 REMIC
Tax Returns and
Reports to Certificateholders.
(a) For
federal income tax purposes, each REMIC created hereunder shall have a taxable
year ending on December 31st and shall maintain its books on the accrual
method of accounting.
(b)
The
Securities Administrator shall prepare or cause to be prepared, shall execute
or
cause to be executed by such Person as is required by the Code, Treasury
Regulations or state or local tax laws, regulations or rules and shall file
or
cause to be filed with the Internal Revenue Service and applicable state or
local tax authorities income tax and information returns and other tax
compliance duties for each taxable year with respect to each REMIC created
hereunder containing such information at the times and in the manner as may
be
required by the Code, the Treasury Regulations or state or local tax laws,
regulations, or rules, and shall furnish or cause to be furnished to each REMIC
created hereunder and the Certificateholders the schedules, statements or
information at such times and in such manner as may be required
thereby. The Master Servicer shall provide on a timely basis to the
Securities Administrator or its designee such information with respect to the
assets of the Trust Estate as is in its possession and reasonably required
by
the Securities Administrator to enable it to perform its obligations under
this
Article V. Within 30 days of the Closing Date, the Securities
Administrator shall obtain for each REMIC created hereunder a taxpayer
identification number on Form SS-4 and any similarly required state or
local forms or as otherwise permitted by the Internal Revenue Service, and
shall
furnish or cause to be furnished to the Internal Revenue Service, on
Form 8811 and any similarly required state or local forms or as otherwise
required by the Code or the Treasury Regulations, the name, title, address
and
telephone number of the person that Holders of the Certificates may contact
for
tax information relating thereto, together with such additional information
at
the time or times and in the manner required by the Code or the Treasury
Regulations. Such federal, state, or local income tax and information
returns shall be signed by the Trustee, or such other Person as may be required
to sign such returns by the Code, the Treasury Regulations or state or local
tax
laws, regulations, or rules.
(c) In
the
first federal income tax return (and any similar required state or local income
tax returns) of each REMIC created hereunder for its short taxable year ending
December 31, 20 , REMIC status shall be elected for such taxable
year and all succeeding taxable years.
(d) The
Securities Administrator will maintain or cause to be maintained such records
relating to each REMIC created hereunder, including but not limited to records
relating to the income, expenses, assets and liabilities of the Trust Estate,
and the initial fair market value and adjusted basis of the Trust Estate
property and assets determined at such intervals as may be required by the
Code
or the Treasury Regulations, as may be necessary to prepare the foregoing
returns, schedules, statements or information.
(e) Notwithstanding
any other provision of this Agreement, the Master Servicer and the Securities
Administrator, as applicable, shall comply with all federal withholding
requirements with respect to payments to Certificateholders of interest or
original issue discount that the Master Servicer or the Securities Administrator
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for any such
withholding. In
93
the
event
the Securities Administrator withholds any amount from interest or original
issue discount payments or advances thereof to any Certificateholder pursuant
to
federal withholding requirements, the Securities Administrator shall indicate
the amount withheld to such Certificateholder.
Section
5.07 Tax
Matters
Person.
The
Tax
Matters Person shall have the same duties with respect to the applicable REMIC
as those of a “tax matters partner” under Subchapter C of Chapter 63 of
Subtitle F of the Code. The Holder of the Class 2-A-R
Certificate is hereby designated as the Tax Matters Person for the Upper-Tier
REMIC, the Middle-Tier REMIC and the Lower-Tier REMIC. By its
acceptance of the Class 2-A-R Certificate, such Holder irrevocably appoints
the Securities Administrator as its agent to perform all of the duties of the
Tax Matters Person for the Upper-Tier REMIC, the Middle-Tier REMIC and the
Lower-Tier REMIC.
Section
5.08 Rights
of the Tax Matters
Person in Respect of the Securities Administrator.
The
Securities Administrator shall afford the Tax Matters Person, upon reasonable
notice during normal business hours, access to all records maintained by the
Securities Administrator in respect of its duties hereunder and access to
officers of the Securities Administrator responsible for performing such
duties. Upon request, the Securities Administrator shall furnish the
Tax Matters Person with its most recent report of condition published pursuant
to law or to the requirements of its supervisory or examining authority publicly
available. The Securities Administrator shall make available to the
Tax Matters Person such books, documents or records relating to the Securities
Administrator’s services hereunder as the Tax Matters Person shall reasonably
request. The Tax Matters Person shall not have any responsibility or
liability for any action or failure to act by the Securities Administrator
and
is not obligated to supervise the performance of the Securities Administrator
under this Agreement or otherwise.
Section
5.09 REMIC
Related
Covenants.
For
as
long as any REMIC created hereunder shall exist, the Trustee, the Securities
Administrator, the Depositor and the Master Servicer shall act in accordance
herewith to assure continuing treatment of each REMIC created hereunder as
a
REMIC within the meaning of the Code and related regulations and avoid the
imposition of tax on any REMIC created hereunder. In
particular:
(a) Neither
the Securities Administrator nor the Trustee shall create, or permit the
creation of, any “interests” in any REMIC created hereunder within the meaning
of Code Section 860D(a)(2) other than the interests represented by the
Residual Certificate, the Upper-Tier Regular Interests, the Uncertificated
Middle-Tier Interests and the Uncertificated Lower-Tier Interests.
(b) Except
as
otherwise provided in the Code, (i) the Depositor and the Master Servicer
shall not contribute to the Trust Estate and the Trustee shall not accept
property unless substantially all of the property held in each REMIC constitutes
either “qualified mortgages” or
94
“permitted
investments” as defined in Code Sections 860G(a)(3) and (5), respectively,
and (ii) no property shall be contributed, or deemed contributed, to any
REMIC created hereunder after the start-up day unless such contribution would
not subject the Trust Estate to the 100% tax on contributions to a REMIC created
hereunder after the start-up day of such REMIC imposed by Code
Section 860G(d).
(c) Neither
the Securities Administrator, on behalf of the Trust Estate or the Trustee,
nor
the Trustee shall accept on behalf of any REMIC created hereunder any fee or
other compensation for services and none of the Securities Administrator, the
Trustee or the Master Servicer shall knowingly accept, on behalf of the Trust
Estate any income from assets other than those permitted to be held by a
REMIC.
(d) Neither
the Securities Administrator, on behalf of the Trust Estate or the Trustee,
nor
the Trustee shall sell or permit the sale of all or any portion of the Mortgage
Loans (other than in accordance with Sections 2.02 or
2.04),
unless
such sale is pursuant to a “qualified liquidation” of the applicable REMIC as
defined in Code Section 860F(a)(4)(A) and in accordance with Article
X.
(e) The
Securities Administrator shall maintain books with respect to the Trust and
each
REMIC created hereunder on a calendar year taxable year basis and on an accrual
basis.
None
of
the Master Servicer, the Securities Administrator or the Trustee shall engage
in
a “prohibited transaction” (as defined in Code Section 860F(a)(2)), except
that, with the prior written consent of the Master Servicer and the Depositor,
the Securities Administrator may engage in the activities otherwise prohibited
by the foregoing paragraphs (b), (c) and (d); provided that the Master
Servicer shall have delivered to the Securities Administrator an Opinion of
Counsel to the effect that such transaction will not result in the imposition
of
a tax on any REMIC created hereunder and will not disqualify any such REMIC
from
treatment as a REMIC; and, providedfurther,
that the Master
Servicer shall have demonstrated to the satisfaction of the Securities
Administrator that such action will not adversely affect the rights of the
Holders of the Certificates and the Securities Administrator and that such
action will not adversely impact the rating of the Certificates. None
of the Master Servicer, the Securities Administrator, the Trustee or any
Servicer shall, unless the Mortgagor is in default with respect to the Mortgage
Loan or such default is, in the judgment of the Servicer, reasonably
foreseeable, permit any modification with respect to any Mortgage Loan that
would change the Mortgage Rate, defer or forgive the payment thereof of any
principal or interest payments, reduce the Stated Principal Balance (except
for
actual payments of principal) or extend the final maturity date with respect
to
such Mortgage Loan. Notwithstanding anything to the contrary herein,
none of the Master Servicer, the Securities Administrator, the Trustee or any
Servicer shall permit any modification with respect to any Mortgage Loan that
would (A) both (x) effect an exchange or reissuance of such Mortgage Loan under
Section 1.860G 2(b) of the Treasury Regulations and (y) cause any
REMIC constituting part of the Trust Estate to fail to qualify as a REMIC under
the Code or the imposition of any tax on “prohibited transactions” or
“contributions” after the Start-up Day under the REMIC Provisions or (B) extend
the final maturity date with respect to any Mortgage Loan beyond the REMIC
Certificate Maturity Date.
Section
5.10 Master
Servicer, Securities
Administrator and Trustee Indemnification .
95
(a) In
the
event that any REMIC created hereunder fails to qualify as a REMIC, loses its
status as a REMIC, or incurs federal, state or local taxes as a result of a
prohibited transaction or prohibited contribution under the REMIC Provisions
due
solely to (i) the negligent performance by the Trustee of its duties and
obligations set forth herein or (ii) any state, local or franchise taxes
imposed upon the Trust Estate as a result of the location of the Trustee or
any
co-trustee, the Trustee shall indemnify the Trust Estate against any and all
losses, claims, damages, liabilities or expenses (“Losses”)
resulting from such negligence, including, without limitation, any reasonable
attorneys’ fees imposed on or incurred as a result of a breach of the Trustee’s
or any co-trustee’s covenants.
(b) In
the
event that any REMIC created hereunder fails to qualify as a REMIC, loses its
status as a REMIC, or incurs federal, state or local taxes as a result of a
prohibited transaction or prohibited contribution under the REMIC Provisions
due
solely to (i) the negligent performance by the Master Servicer of its
duties and obligations set forth herein or (ii) any state, local or
franchise taxes imposed upon the Trust Estate as a result of the location of
the
Master Servicer, the Master Servicer shall indemnify the Trust Estate against
any and all Losses resulting from such negligence, including, without
limitation, any reasonable attorneys’ fees imposed on or incurred as a result of
a breach of the Master Servicer’s covenants.
(c) In
the
event that any REMIC created hereunder fails to qualify as a REMIC, loses its
status as a REMIC, or incurs federal, state or local taxes as a result of a
prohibited transaction or prohibited contribution under the REMIC Provisions
due
solely to (i) the negligent performance by the Securities Administrator of
its duties and obligations set forth herein or (ii) any state, local or
franchise taxes imposed upon the Trust Estate as a result of the location of
the
Securities Administrator, the Securities Administrator shall indemnify the
Trust
Estate against any and all Losses resulting from such negligence, including,
without limitation, any reasonable attorneys’ fees imposed on or incurred as a
result of a breach of the Securities Administrator’s covenants.
ARTICLE
VI
THE
CERTIFICATES
Section
6.01 The
Certificates.
The
Classes of Certificates shall be substantially in the forms attached hereto
as
ExhibitsA-1A1
through B-XB6 and C
(reverse of all
Certificates) and shall, on original issue, be executed by the Securities
Administrator and shall be authenticated and delivered by the Securities
Administrator to or upon the order of the Depositor upon receipt by the Trustee
of the documents specified in Section 2.01. The
Classes of Certificates shall be available to investors in the minimum
Denominations and the integral multiples in excess thereof as set forth in
the
Preliminary Statement. The Senior Certificates (other than the
Class 2-A-R Certificate) and the Class X-X-1, Class X-X-2, Class
X-X-3, Class X-B-1, Class X-B-2 and Class X-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.
96
The
Certificates shall be executed by manual or facsimile signature on behalf of
the
Securities Administrator by an authorized officer or
signatory. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures were affixed, authorized
to sign on behalf of the Securities Administrator shall bind the Securities
Administrator, notwithstanding that such individuals or any of them have ceased
to be so authorized prior to the execution and delivery of such Certificates
or
did not hold such offices or positions at the date of such
Certificate. No Certificate shall be entitled to any benefit under
this Agreement, or be valid for any purpose, unless such Certificate shall
have
been manually authenticated by the Securities Administrator substantially in
the
form provided for herein, and such authentication upon any Certificate shall
be
conclusive evidence, and the only evidence, that such Certificate has been
duly
authenticated and delivered hereunder. All Certificates shall be
dated the date of their authentication.
Section
6.02 Registration
of Transfer and
Exchange of Certificates.
(a) The
Securities Administrator shall cause to be kept at an office or agency in the
city in which the Corporate Trust Office of the Securities Administrator is
located a Certificate Register in which, subject to such reasonable regulations
as it may prescribe, the Securities Administrator shall provide for the
registration of Certificates and of transfers and exchanges of Certificates
as
herein provided. The Securities Administrator shall initially serve
as Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided.
(b) At
the
option of the Certificateholders, Certificates may be exchanged for other
Certificates of authorized Denominations of a like Class, tenor and aggregate
Percentage Interest, upon surrender of the Certificates to be exchanged at
any
such office or agency. Whenever any Certificates are so surrendered
for exchange, the Securities Administrator shall execute and the Securities
Administrator shall authenticate and deliver the Certificates which the
Certificateholder making the exchange is entitled to receive. Every
Certificate presented or surrendered for transfer or exchange shall (if so
required by the Securities Administrator or the Certificate Registrar) be duly
endorsed by, or be accompanied by a written instrument of transfer in form
satisfactory to the Securities Administrator and the Certificate Registrar
duly
executed by, the Holder thereof or its attorney duly authorized in
writing.
(c) (i) Except
as provided in paragraph (c)(iii) below, the Book-Entry Certificates
shall at all times remain registered in the name of the Depository or its
nominee and at all times: (A) registration of the Book-Entry Certificates
may not be transferred by the Securities Administrator except to another
Depository; (B) the Depository shall maintain book-entry records with
respect to the Certificate Owners and with respect to ownership and transfers
of
such Book-Entry Certificates; (C) ownership and transfers of registration
of the Book-Entry Certificates on the books of the Depository shall be governed
by applicable rules established by the Depository; (D) the Depository may
collect its usual and customary fees, charges and expenses from its Depository
Participants; (E) the Securities Administrator shall deal with the
Depository as the representative of the Certificate Owners of the Book-Entry
Certificates for purposes of exercising the rights of Holders under this
Agreement, and requests and directions for and votes of the Depository shall
not
be deemed to be inconsistent if they are made with respect to different
Certificate Owners; and (F) the Securities Administrator may rely and
shall
97
be
fully
protected in relying upon information furnished by the Depository with respect
to its Depository Participants and furnished by the Depository Participants
with
respect to indirect participating firms and persons shown on the books of such
indirect participating firms as direct or indirect Certificate
Owners.
(ii) All
transfers by Certificate Owners of Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners
it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository’s normal procedures.
(iii)
If the Depository advises the Securities Administrator in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities as Depository and the Securities Administrator or the Depositor
is unable to locate a qualified successor, the Securities Administrator shall
notify all Certificate Owners through the Depository of the occurrence of such
event and of the availability of definitive, fully-registered Certificates
(the
“Definitive
Certificates”) to such Certificate Owners requesting the
same. Upon surrender to the Securities Administrator of the related
Class of Certificates by the Depository (or by the Certificate Custodian,
if it holds such Class on behalf of the Depository), accompanied by the
instructions from the Depository for registration, the Securities Administrator
shall issue the Definitive Certificates. None of the Master Servicer,
the Depositor, the Securities Administrator or the Trustee shall be liable
for
any delay in delivery of such instruction and may conclusively rely on, and
shall be protected in relying on, such instructions. The Depositor
shall provide the Securities Administrator with an adequate inventory of
certificates to facilitate the issuance and transfer of Definitive
Certificates. Upon the issuance of Definitive Certificates, the
Securities Administrator shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder.
(d) No
transfer of a Private Certificate shall be made unless such transfer is exempt
from the registration requirements of the 1933 Act and any applicable state
securities laws or is made in accordance with the 1933 Act and such
laws. In the event of any such transfer (other than in connection
with the initial transfer of any such Certificate by the Depositor to an
Affiliate of the Depositor or, in the case of the Class 2-A-R Certificate,
the first transfer by an Affiliate of the Depositor), (i) unless such
transfer is made in reliance on Rule 144A under the 1933 Act, the
Securities Administrator or the Depositor may require a written Opinion of
Counsel (which may be in-house counsel) acceptable to and in form and substance
reasonably satisfactory to the Securities Administrator and the Depositor that
such transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the 1933 Act and such laws or is being
made pursuant to the 1933 Act and such laws, which Opinion of Counsel shall
not
be an expense of the Securities Administrator or the Depositor and (ii) the
Securities Administrator shall require a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached hereto
as
Exhibit G-1 and
a certificate from such Certificateholder’s prospective transferee substantially
in the form attached hereto either as Exhibit G-2A or
as Exhibit G-2B,
which certificates shall not be an expense of the Securities Administrator
or
the Depositor; provided
that the foregoing requirements under
98
clauses (i) and (ii) shall
not apply to a transfer of a Private Certificate between or among the Depositor,
the Sponsor, their affiliates or both. The Depositor shall provide to
any Holder of a Private Certificate and any prospective transferees designated
by any such Holder, information regarding the related Certificates and the
Mortgage Loans and such other information as shall be necessary to satisfy
the
condition to eligibility set forth in Rule 144A(d)(4) for transfer of any
such certificate without registration thereof under the 1933 Act pursuant to
the
registration exemption provided by Rule 144A. The Holder of a
Private Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Securities Administrator and the Depositor against
any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws. For purposes of clause
(ii) of this Section
6.02(d) the representations required in any transferor certificate
(substantially in the form of Exhibit G-1 hereto) and any investment letter
(substantially in the form of Exhibit G-2A hereto) shall be deemed to have
made
in connection with the transfer of any Private Certificate that is a Book-Entry
Certificate.
(e)
No
transfer of an ERISA Restricted Certificate shall be made unless the transferee
delivers to the Securities Administrator either (i) a representation letter
substantially in the form of Exhibit H from
the transferee of such Certificate, which representation letter shall not be
an
expense of the Depositor, the Trustee, the Securities Administrator or the
Master Servicer, or (ii) in the case of any ERISA Restricted Certificate
(other than the Class 2-A-R Certificate) presented for registration in the
name of an employee benefit plan or arrangement subject to Title I of ERISA
or
Section 4975 of the Code, or a Person acting on behalf of or using assets of
any
such employee benefit plan or arrangement (collectively, a “Plan”), an Opinion
of
Counsel in form and substance satisfactory to the Securities Administrator
to
the effect that the purchase or holding of such ERISA Restricted Certificate
will not constitute or result in a non-exempt prohibited transaction within
the
meaning of Section 406 of ERISA or Section 4975 of the Code and will not
subject the Trustee, the Depositor, the Certificate Registrar, the Securities
Administrator or the Master Servicer to any obligation in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be an expense
of the Securities Administrator, the Depositor, the Certificate Registrar,
the
Trustee or the Master Servicer. In the case of an ERISA Restricted
Certificate that is a Book-Entry Certificate, for purposes of
clause (i) of the preceding sentence, a transferee will be deemed to
have made one of the representations set forth in Exhibit H to the
Securities Administrator by the acceptance by a Certificate Owner of a
Book-Entry Certificate of the beneficial interest in any such Class of
ERISA-Restricted Certificates, unless the Securities Administrator shall have
received from the transferee an alternative representation or Opinion of Counsel
acceptable in form and substance to the Securities
Administrator. Notwithstanding anything else to the contrary herein,
any purported transfer of an ERISA Restricted Certificate in definitive form
to
a Plan without the delivery to the Securities Administrator of a properly
completed representation letter or an Opinion of Counsel, in each case,
satisfactory to the Securities Administrator as described above shall be void
and of no effect.
Neither
the Securities Administrator nor the Certificate Registrar shall have any
liability for transfers of Book-Entry Certificates made through the book-entry
facilities of the Depository or between or among any Depository Participants
or
Certificate Owners, made in violation of applicable restrictions. The
Securities Administrator may rely and shall be fully protected in
99
relying
upon information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and Persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
To
the
extent permitted under applicable law (including, but not limited to, ERISA),
the Securities Administrator shall be under no liability to any Person for
any
registration of transfer of any ERISA Restricted Certificate that is in fact
not
permitted by this Section 6.02 or
for making any payments due on such Certificate to the Holder thereof or taking
any other action with respect to such Holder under the provisions of this
Agreement so long as the transfer was registered by the Securities Administrator
in accordance with the foregoing requirements.
(f) Each
Person who has or who acquires any Ownership Interest in the Residual
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the following provisions, and the rights
of each Person acquiring any Ownership Interest in the Residual Certificate
are
expressly subject to the following provisions:
(i) Each
Person holding or acquiring any Ownership Interest in the Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Securities
Administrator of any change or impending change in its status as a Permitted
Transferee.
(ii) No
Person
shall acquire an Ownership Interest in the Residual Certificate unless such
Ownership Interest is a pro
rata undivided interest.
(iii) In
connection with any proposed transfer of any Ownership Interest in the Residual
Certificate, the Securities Administrator shall require delivery to it, in
form
and substance satisfactory to it, of an affidavit substantially in the form
of
Exhibit I
hereto from the proposed transferee and a certificate substantially in the
form
attached hereto as Exhibit
T.
(iv) Notwithstanding
the delivery of an affidavit by a proposed transferee under
clause (iii) above, if a Responsible Officer of the Securities
Administrator has actual knowledge that the proposed transferee is not a
Permitted Transferee, no transfer of any Ownership Interest in the Residual
Certificate to such proposed transferee shall be effected.
(v) No
Ownership Interest in the Residual Certificate may be purchased by or
transferred to any Person that is not a U.S. Person, unless (A) such Person
holds the Residual Certificate in connection with the conduct of a trade or
business within the United States and furnishes the transferor and the
Securities Administrator with an effective Internal Revenue Service
Form W-8ECI (or successor thereto) or (B) the transferee delivers to
both the transferor and the Securities Administrator an Opinion of Counsel
from
a nationally-recognized tax counsel to the effect that such transfer is in
accordance with the requirements of the Code and the regulations promulgated
thereunder and that such transfer of the Residual Certificate will not be
disregarded for federal income tax purposes.
100
(vi) Any
attempted or purported transfer of any Ownership Interest in the Residual
Certificate in violation of the provisions of this Section 6.02
shall be absolutely null and void and shall vest no rights in the purported
transferee. If any purported transferee shall, in violation of the
provisions of this Section 6.02,
become a Holder of the Residual Certificate, then the prior Holder of the
Residual Certificate that is a Permitted Transferee shall, upon discovery that
the registration of transfer of the 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 the Residual Certificate. The Securities Administrator
shall be under no liability to any Person for any registration of transfer
of
the Residual Certificate that is in fact not permitted by this Section 6.02 or
for making any distributions due on the Residual Certificate to the Holder
thereof or taking any other action with respect to such Holder under the
provisions of the Agreement so long as the transfer was registered in accordance
with this Section 6.02. The
Securities Administrator shall be entitled to recover from any Holder of the
Residual Certificate that was in fact not a Permitted Transferee at the time
such distributions were made all distributions made on the Residual
Certificate. Any such distributions so recovered by the Securities
Administrator shall be distributed and delivered by the Securities Administrator
to the prior Holder of the Residual Certificate that is a Permitted
Transferee.
(vii) If
any
Person other than a Permitted Transferee acquires any Ownership Interest in
the
Residual Certificate in violation of the restrictions in this Section 6.02,
then the Securities Administrator, based on information provided to the
Securities Administrator by the Master Servicer, will provide to the Internal
Revenue Service, and to the Persons specified in Section 860E(e)(3) and (6)
of the Code, information needed to compute the tax imposed under
Section 860E(e) of the Code on transfers of residual interests to
disqualified organizations. The expenses of the Securities
Administrator under this clause (vii) shall be reimbursable by the
Trust.
(viii) No
Ownership Interest in the Residual Certificate shall be acquired by a
Plan.
(ix) The
registered Holder of a Class 2-A-R Certificate will be entitled to separate
such
Certificate into its component parts. The Securities Administrator
shall, upon delivery to it of the Class 2-A-R Certificate and a written request
of the registered Holder thereof to separate such Certificate into its component
parts, issue to such registered Holder in exchange for such Class 2-A-R
Certificate (i) a separately transferable, certified and fully registered
security that will, from the date of its issuance, represent the Holder’s
Percentage Interest in the Class LR Interest, (ii) a separately transferable,
certified and fully registered security that will, from the date of its
issuance, represent the Holder’s Percentage Interest in the Class MR Interest
and (iii) a separately transferable, certified and fully registered security
that will, from the date of its issuance, represent the Holder’s Percentage
Interest in the Class UR Interest. The Securities Administrator may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection with such exchange of the Class 2-A-R
Certificate.
101
(g) No
service charge shall be imposed for any transfer or exchange of Certificates
of
any Class, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
(h) All
Certificates surrendered for transfer and exchange shall be destroyed by the
Certificate Registrar.
Section
6.03 Mutilated,
Destroyed, Lost
or Stolen Certificates.
If
(a) any mutilated Certificate is surrendered to the Certificate Registrar
or the Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate, and (b) there is delivered
to the Securities Administrator, the Trustee, the Depositor and the Certificate
Registrar such security or indemnity reasonably satisfactory to each, to save
each of them harmless, then, in the absence of actual notice to the Securities
Administrator or the Certificate Registrar that such Certificate has been
acquired by a bona fide purchaser, the Securities Administrator shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor,
Class and Percentage Interest but bearing a number not contemporaneously
outstanding. Upon the issuance of any new Certificate under this
Section, the Securities Administrator may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
relation thereto and any other expenses (including the fees and expenses of
the
Securities Administrator and the Certificate Registrar) connected
therewith. Any duplicate Certificate issued pursuant to this
Section shall constitute complete and indefeasible evidence of ownership in
the Trust, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section
6.04 Persons
Deemed
Owners.
Prior
to
due presentation of a Certificate for registration of transfer, the Depositor,
the Master Servicer, the Trustee, the Securities Administrator, the Certificate
Registrar and any agent of the Depositor, the Master Servicer, the Trustee,
the
Securities Administrator or the Certificate Registrar may treat the Person
in
whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions pursuant to Section 5.01 and
for all other purposes whatsoever, and none of the Depositor, the Master
Servicer, the Trustee, the Securities Administrator, the Certificate Registrar
or any agent of the Depositor, the Master Servicer, the Trustee, the Securities
Administrator or the Certificate Registrar shall be affected by notice to the
contrary.
ARTICLE
VII
THE
DEPOSITOR AND THE MASTER SERVICER
Section
7.01 Respective
Liabilities of
the Depositor and the Master Servicer.
The
Depositor and the Master Servicer shall each be liable in accordance herewith
only to the extent of the obligations specifically and respectively imposed
upon
and undertaken by the
102
Depositor
and the Master Servicer herein. By way of illustration and not
limitation, the Depositor is not liable for the master servicing and
administration of the Mortgage Loans, nor is it obligated by Section 8.01 to
assume any obligations of the Master Servicer or to appoint a designee to assume
such obligations, nor is it liable for any other obligation hereunder that
it
may, but is not obligated to, assume unless it elects to assume such obligation
in accordance herewith.
Section
7.02 Merger
or Consolidation of
the Depositor or the Master Servicer.
The
Depositor and the Master Servicer will each keep in full effect its existence,
rights and franchises as a separate entity under the laws governing its
organization, and will each obtain and preserve its qualification to do business
as a foreign corporation in each jurisdiction in which such qualification is
or
shall be necessary to protect the validity and enforceability of this Agreement,
the Certificates or any of the Mortgage Loans and to perform its respective
duties under this Agreement.
Any
Person into which the Depositor or the Master Servicer may be merged or
consolidated, or any corporation resulting from any merger or consolidation
to
which the Depositor or the Master Servicer shall be a party, or any Person
succeeding to the business of the Depositor or the Master Servicer, shall be
the
successor of the Depositor or the Master Servicer, as the case may be,
hereunder, without the execution or filing of any paper or any further act
on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided,
however, that (a) the successor or surviving Person to the Master
Servicer shall be qualified to service mortgage loans on behalf of Xxxxxx Xxx
or
Xxxxxxx Mac and (b) the Master Servicer and such successor or surviving Person
shall notify the Securities Administrator and the Depositor of any such merger,
conversion or consolidation at least two Business Days prior to the effective
date thereof and shall provide the Securities Administrator and the Depositor
with all information required by the Securities Administrator to comply with
its
reporting obligation under Item 6.02 of Form 8-K not later than the effective
date of such merger, conversion or consolidation.
In
connection with the succession to the Master Servicer under this Agreement
by
any Person (i) into which the Master Servicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the Master
Servicer, the Master Servicer shall notify the Depositor of such succession
or
appointment and shall furnish to the Depositor and the Securities Administrator
in writing and in form and substance reasonably satisfactory to the Depositor
and the Securities Administrator, all information reasonably necessary for
the
Securities Administrator to accurately and timely report, pursuant to Section 3.22(d),
the event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if such
reports under the Exchange Act are required to be filed under the Exchange
Act).
Section
7.03 Limitation
on Liability of
the Depositor, the Master Servicer and Others.
None
of
the Depositor, the Master Servicer or any of the directors, officers, employees
or agents of the Depositor or of the Master Servicer shall be under any
liability to the Trust Estate or the Certificateholders for any 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
103
provision
shall not protect the Depositor, the Master Servicer or any such Person against
any breach of warranties or representations made herein or any liability which
would otherwise be imposed by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard
of
obligations and duties hereunder. The Depositor, the Master Servicer
and any director, officer, employee or agent of the Depositor or the Master
Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Master Servicer and any director,
officer, employee or agent of the Depositor or the Master Servicer shall be
indemnified by the Trust Estate and held harmless against any loss, liability
or
expense incurred in connection with any legal action relating to this Agreement
or the Certificates, other than any loss, liability or expense related to any
specific Mortgage Loan or Mortgage Loans (except as any such loss, liability
or
expense shall be otherwise reimbursable pursuant to this Agreement) and any
loss, liability or expense incurred by reason of willful misfeasance, bad faith
or gross negligence in the performance of duties hereunder or by reason of
reckless disregard of obligations and duties hereunder. Neither of
the Depositor nor the Master Servicer shall be under any obligation to appear
in, prosecute or defend any legal action which is not incidental to its
respective duties under this Agreement and which in its opinion may involve
it
in any expense or liability; provided, however,
that the Depositor
or the Master Servicer may in its discretion undertake any such action which
it
may deem necessary or desirable in respect to this Agreement and the rights
and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action
and any liability resulting therefrom shall be expenses, costs and liabilities
of the Trust Estate (except any expenses, costs or liabilities incurred as
a
result of any breach of representations or warranties of the related party
or by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties of such party hereunder or by reason of reckless disregard of
obligations and duties of such party hereunder), and the Depositor and the
Master Servicer shall each be entitled to be reimbursed therefor out of amounts
attributable to the applicable Mortgage Loans on deposit in the Master Servicer
Custodial Account as provided by Section 3.11.
Section
7.04 Depositor
and Master
Servicer Not to Resign.
Subject
to the provisions of Section 7.02,
neither the Depositor nor the Master Servicer shall resign from its respective
obligations and duties hereby imposed on it except upon determination that
its
duties hereunder are no longer permissible under applicable law. Any
such determination permitting the resignation of the Depositor or the Master
Servicer shall be evidenced by an Opinion of Counsel to such effect delivered
to
the Securities Administrator. No such resignation by the Master
Servicer shall become effective until the Securities Administrator or a
successor Master Servicer shall have assumed such Master 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:
104
(a)
any
failure by the Master Servicer to remit amounts to the Securities Administrator
for deposit into the Certificate Account in the amount and manner provided
herein so as to enable the Securities Administrator to distribute to Holders
of
Certificates any payment required to be made under the terms of such
Certificates and this Agreement which continues unremedied by 12:00 P.M.
New York time on the related Distribution Date; or
(b)
failure
on the part of the Master Servicer duly to observe or perform in any material
respect any other covenants or agreements of the Master Servicer set forth
in
the Certificates or in this Agreement, which covenants and agreements continue
unremedied for a period of 30 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given to
the
Master Servicer by the Securities Administrator, the Trustee or the Depositor,
or to the Master Servicer, the Depositor, the Securities Administrator and
the
Trustee by the Holders of Certificates evidencing Voting Rights aggregating
not
less than 25% of all Certificates affected thereby; or
(c)
the
entry of a decree or order by a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator, receiver
or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings against the Master Servicer, or for the
winding up or liquidation of the Master Servicer’s affairs, and the continuance
of any such decree or order unstayed and in effect for a period of 60
consecutive days; or
(d)
the
consent by the Master Servicer to the appointment of a conservator or receiver
or liquidator in any insolvency, readjustment of debt, marshalling of assets
and
liabilities or similar proceedings of or relating to the Master Servicer or
of
or relating to substantially all of its property; or the Master Servicer shall
admit in writing its inability to pay its debts generally as they become due,
file a petition to take advantage of any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligations; or
(e) failure
by the Master Servicer to duly perform, within the required time period, its
obligations under Section 3.20,
Section 3.21
or
Section 3.22;
or
(f) failure
by the Master Servicer to make a Periodic Advance required to be made by it
pursuant to Section 3.19 by
5:00 P.M. New York time on the Business Day preceding the related Distribution
Date.
then,
(i) in the case of Event of Default described in clauses (a) through
(e) hereof, so long as such Event of Default is actually known by a Responsible
Officer of the Trustee or the Depositor and shall not have been remedied by
the
Master Servicer, either the Trustee or the Depositor may, and at the direction
of the Holders of Certificates evidencing Voting Rights aggregating not less
than 51% of all Certificates affected thereby shall, by notice then given in
writing to the Master Servicer (and to the Trustee, if given by the Depositor,
and to the Depositor, if given by the Trustee), terminate all of the rights
and
obligations of the Master Servicer under this Agreement and (ii) in the
case of an Event of Default described in clause (f) hereof, so long as such
event is known by a Responsible Officer of the Trustee, the Trustee shall be
obligated to make such Periodic Advance and then, so long as such Event of
Default shall not have been
105
remedied
by 5:00 P.M. New York time on the related Distribution Date (including the
reimbursement to the Trustee by the Master Servicer, with interest thereon
at
the Prime Rate (as set forth in The Wall Street Journal), for
any Periodic Advance made), the Trustee may, by notice given in writing to
the
Master Servicer and the Depositor, terminate all of the rights and obligations
of the Master Servicer under this Agreement. On or after the receipt
by the Master Servicer of such written notice and subject to Section 8.05,
all authority and power of the Master Servicer under this Agreement, whether
with respect to the Certificates or the Mortgage Loans or otherwise, shall
pass
to and be vested in the Trustee pursuant to and under this Section 8.01 and
Section 8.05,
unless and until such time as the Trustee shall appoint a successor Master
Servicer pursuant to Section 8.05,
and, without limitation, the Trustee is hereby authorized and empowered to
execute and deliver, on behalf of the Master Servicer, as attorney-in-fact
or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of
such
notice of termination, whether to complete the transfer and endorsement of
the
applicable Mortgage Loans and related documents, or otherwise, including,
without limitation, the recordation of the assignments of the applicable
Mortgage Loans to it. The Master Servicer agrees to cooperate with the Trustee
in effecting the termination of the responsibilities and rights of the Master
Servicer hereunder, including, without limitation, the transfer to the Trustee
for the administration by it of all cash amounts that have been deposited by
the
Master Servicer in the Master Servicer Custodial Account or thereafter received
by the Master Servicer with respect to the Mortgage Loans. Upon
obtaining notice or knowledge of the occurrence of any Event of Default, the
Person obtaining such notice or knowledge shall give prompt written notice
thereof to Certificateholders at their respective addresses appearing in the
Certificate Register and to each Rating Agency. All costs and
expenses (including attorneys’ fees) incurred in connection with transferring
the master servicing data and information to the successor Master Servicer
and
amending this Agreement to reflect such succession as Master Servicer pursuant
to this Section 8.01
shall be paid by the predecessor Master Servicer (unless the predecessor Master
Servicer is the Trustee, in which event the previous Master Servicer shall
be
responsible for payment of such costs and expenses so long as the transfer
of
servicing is not the result of an Event of Default on the part of the Trustee
in
its capacity as the predecessor Master Servicer). Notwithstanding the
termination of the Master Servicer pursuant hereto, the Master Servicer shall
remain liable for any causes of action arising out of any Event of Default
occurring prior to such termination, subject to the terms and conditions of
this
Agreement.
Section
8.02 Remedies
of
Trustee.
During
the continuance of any Event of Default, so long as such Event of Default shall
not have been remedied, the Trustee, in addition to the rights specified in
Section 8.01,
shall have the right, in its own name as trustee of an express trust, to take
all actions now or hereafter existing at law, in 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
106
or
omission to exercise any right or remedy shall impair any such right or remedy
or shall be deemed to be a waiver of any Event of Default.
Section
8.03 Directions
by
Certificateholders and Duties of Trustee During Event of
Default.
During
the continuance of any Event of Default, Holders of Certificates evidencing
Voting Rights aggregating not less than 25% (or such other percentage as may
be
required herein) of each Class of Certificates affected thereby may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the Trustee
under this Agreement; provided, however,
that the Trustee
shall be under no obligation to pursue any such remedy, or to exercise any
of
the trusts or powers vested in it by this Agreement (including, without
limitation, (a) the conducting or defending of any administrative action or
litigation hereunder or in relation hereto, and (b) the terminating of the
Master Servicer or any successor Master Servicer from its rights and duties
as
master servicer hereunder) at the request, order or direction of any of the
Certificateholders, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity satisfactory to it against the costs,
expenses and liabilities which may be incurred therein or thereby and, provided further, that,
subject to the provisions of Section 9.01,
the Trustee shall have the right to decline to follow any such direction if
the
Trustee, based upon an Opinion of Counsel, determines that the action or
proceeding so directed may not lawfully be taken or if the Trustee in good
faith
determines that the action or proceeding so directed would subject the Trustee
to a risk of personal liability or be unjustly prejudicial to the non-assenting
Certificateholders.
Section
8.04 Action
upon Certain Failures
of the Master Servicer and upon Event of Default.
In
the
event that a Responsible Officer of the Trustee shall have actual knowledge
of
any failure of the Master Servicer specified in Section 8.01(a) or
(b) which
would become an Event of Default upon such Master Servicer’s failure to remedy
the same after notice, the Trustee shall give notice thereof to the Master
Servicer. If a Responsible Officer of the Trustee shall have
knowledge of an Event of Default, the Trustee shall give prompt written notice
thereof to the Securities Administrator and the Securities Administrator shall
give prompt written notice thereof to the Certificateholders in accordance
with
Section 8.01.
Section
8.05 Trustee
to Act; Appointment
of Successor .
(a) (i) Within
90 days of the time the Master Servicer (and the Trustee if such notice of
termination is delivered by the Depositor) receives a notice of termination
pursuant to Section 8.01,
the Trustee (or other named successor) shall, subject to Section 3.07, be the
successor in all respects to the Master Servicer in its capacity as master
servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Master Servicer by the terms and provisions
hereof and thereof, as applicable, or shall appoint a successor pursuant to
Section 3.07.
Notwithstanding the foregoing, (i) the parties hereto agree that the
Trustee, in its capacity as successor Master Servicer, immediately will assume
all of the obligations of the Master Servicer to make advances (including,
without limitation, Advances pursuant to
107
Section 3.19)
under this Agreement, (ii) the Trustee, in its capacity as successor Master
Servicer, shall not be responsible for the lack of information and/or documents
that it cannot obtain through reasonable efforts and (iii) under no
circumstances shall any provision of this Agreement be construed to require
the
Trustee (a) acting in its capacity as successor to the Master Servicer in
its obligation to make advances (including Advances pursuant to Section 3.19) to
advance, expend or risk its own funds or otherwise incur any financial liability
in the performance of its duties hereunder if it shall have reasonable grounds
for believing that such funds are non-recoverable, (b) to be liable for any
losses of the Master Servicer or any acts or omissions of the predecessor Master
Servicer hereunder, (c) to be obligated to make Advances if it is
prohibited from doing so by applicable law, (d) to be obligated to
effectuate repurchases or substitutions of the Mortgage Loans hereunder or
(e)
to be obligated to perform any obligation of the Master Servicer under Section 3.20,
Section 3.21
or
Section 3.22
with respect to any period of time during which the Trustee was not the Master
Servicer. Subject to Section 8.05(b),
as compensation therefor, the Trustee shall be entitled to such compensation
as
the terminated Master Servicer would have been entitled to hereunder if no
such
notice of termination had been given, except for those amounts due to the Master
Servicer as reimbursement for Advances previously made or amounts previously
expended and are otherwise reimbursable hereunder. Notwithstanding
the above, the Trustee may, if it shall be unwilling so to act, or shall, if
it
is legally unable so to act, appoint, or petition a court of competent
jurisdiction to appoint, any established housing and home finance institution
having a net worth of not less than $10,000,000 as the successor to the
terminated Master Servicer hereunder in the assumption of all or any part of
the
responsibilities, duties or liabilities of the Master Servicer hereunder; provided, however,
that any such
institution appointed as a successor Master Servicer shall not, as evidenced
in
writing by each Rating Agency, adversely affect the then current rating of
any
Class of Certificates immediately prior to the termination of the
terminated Master Servicer. The appointment of a successor Master
Servicer shall not affect any liability of the predecessor Master Servicer
which
may have arisen under this Agreement prior to its termination as Master
Servicer, nor shall any successor Master Servicer be liable for any acts or
omissions of the predecessor Master Servicer or for any breach by the Master
Servicer of any of its representations or warranties contained herein or in
any
related document or agreement. Pending appointment of a successor to
a terminated Master Servicer hereunder, unless the Trustee is prohibited by
law
from so acting, the Trustee shall act in such capacity as provided above. The
Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such
succession. All Master Servicing Transfer Costs shall be paid by the
predecessor Master Servicer (unless the predecessor Master Servicer is the
Trustee, in which event the previous Master Servicer shall be responsible for
payment of such costs and expenses so long as the transfer of servicing is
not
the result of an Event of Default on the part of the Trustee in its capacity
as
the predecessor Master Servicer) upon presentation of reasonable documentation
of such costs, and if such predecessor Master Servicer defaults in its
obligation to pay such costs, such costs shall be paid by the successor Master
Servicer or the Trustee (in which case the successor Master Servicer or the
Trustee shall be entitled to reimbursement therefor from the assets of the
Trust).
(b)
In
connection with the appointment of a successor Master Servicer or the assumption
of the duties of the Master Servicer, as specified in Section 8.05(a),
the Trustee may make such arrangements for the compensation of such successor
as
it and such successor shall
108
agree;
provided, however,
that such
compensation shall not exceed the compensation of the Master Servicer being
replaced.
(c) Any
successor, including the Trustee, to the Master Servicer as master servicer
shall during the term of its service as master servicer maintain in force
(i) a policy or policies of insurance covering errors and omissions in the
performance of its obligations as master servicer hereunder and (ii) a
fidelity bond in respect of its officers, employees and agents to the same
extent as the Master Servicer is so required pursuant to Section 3.03.
Section
8.06 Notification
to
Certificateholders.
Upon
any
termination or appointment of a successor to the Master Servicer pursuant to
this Article VIII, the Securities Administrator shall give prompt written notice
thereof to Certificateholders at their respective addresses appearing in the
Certificate Register and to each Rating Agency.
ARTICLE
IX
THE
TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section
9.01 Duties
of Trustee and
Securities Administrator.
(a) (i) The
Trustee and the Securities Administrator, prior to the occurrence of an Event
of
Default and after the curing or waiver of all Events of Default which may have
occurred, each undertake to perform such duties and only such duties as are
specifically set forth in this Agreement as duties of the Trustee and the
Securities Administrator, respectively. In case an Event of Default
has occurred of which a Responsible Officer of the Trustee shall have actual
knowledge (which has not been cured or waived), the Trustee shall exercise
such
of the rights and powers vested in it by this Agreement, and use the same degree
of care and skill in their exercise as a reasonably prudent investor would
exercise or use under the circumstances in the conduct of such investor’s own
affairs. In case an Event of Default has occurred of which a
Responsible Officer of the Securities Administrator shall have actual knowledge
(which has not been cured or waived), the Securities Administrator shall
exercise such of the rights and powers vested in it by this Agreement, and
use
the same degree of care and skill in their exercise as a reasonably prudent
investor would exercise or use under the circumstances in the conduct of such
investor’s own affairs.
The
Trustee and the Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee and the Securities Administrator which
are
specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they conform to the
requirements of this Agreement; provided, however,
that neither the
Trustee nor the Securities Administrator shall be responsible for the accuracy
of any resolution, certificate, statement, opinion, report, document, order
or
other instrument furnished by the Master Servicer or the Depositor
hereunder.
109
(b) No
provision of this Agreement shall be construed to relieve the Trustee or the
Securities Administrator from liability for its own grossly negligent action,
its own grossly negligent failure to act or its own willful misfeasance; provided, however,
that:
(i) Prior
to
the occurrence of an Event of Default, and after the curing or waiver of all
such Events of Default which may have occurred, the duties and obligations
of
the Trustee and the Securities Administrator shall be determined solely by
the
express provisions of this Agreement, the Trustee and the Securities
Administrator shall not be liable except for the performance of such duties
and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the Trustee
and the Securities Administrator and, in the absence of bad faith on the part
of
the Trustee and the Securities Administrator, the Trustee and the Securities
Administrator may conclusively rely, as to the truth of the statements and
the
correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and the Securities Administrator by the Depositor
or
the Master Servicer and which on their face, do not contradict the requirements
of this Agreement;
(ii) The
Trustee (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 and the Securities Administrator (each 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 or an Event of
Default under Section 8.01
unless a Responsible Officer of the Trustee obtains actual knowledge of such
default or Event of Default or any Responsible Officer of the Trustee receives
written notice of such default or Event of Default at its Corporate Trust Office
from the Master Servicer, the Securities Administrator, the Depositor or any
Certificateholder. The Securities Administrator shall not be charged
with knowledge of any default or an Event of Default under Section 8.01
unless a Responsible Officer of the Securities Administrator obtains actual
knowledge of such failure or event or any Responsible Officer of the Securities
Administrator receives written notice of such default or Event of Default at
its
Corporate Trust Office from the Master Servicer, the Trustee, the Depositor
or
any Certificateholder; and
(v) No
provision in this Agreement shall require the Trustee or the Securities
Administrator to expend or risk its own funds or otherwise incur any personal
financial liability in the performance of any of its duties as Trustee or
Securities Administrator hereunder, or in the exercise of any of its rights
or
powers, if the Trustee or the Securities Administrator shall have reasonable
grounds for believing that repayment of funds or adequate indemnity or security
satisfactory to it against such risk or liability is not reasonably assured
to
it and none of the provisions contained in this Agreement shall in any event
require the Securities Administrator to perform, or be responsible for
the
110
manner
of
performance of, any of the obligations of the Master Servicer under this
Agreement.
(c) Subject
to the conditions set forth in this Section 9.01(c), the
Securities Administrator is permitted to utilize one or more Subcontractors
to
perform certain of its obligations hereunder. The Securities
Administrator shall promptly upon request provide to the Depositor a written
description (in form and substance satisfactory to the Depositor) of the role
and function of each Subcontractor utilized by the Securities Administrator,
specifying (i) the identity of each such Subcontractor that is a Servicing
Function Participant and (ii) which elements of the Servicing Criteria will
be
addressed in Assessments of Compliance provided by each Servicing Function
Participant. As a condition to the utilization by the Securities
Administrator of any Servicing Function Participant, the Securities
Administrator shall cause any such Servicing Function Participant for the
benefit of the Depositor to comply with the provisions of Section 3.20 of this
Agreement to the same extent as if such Servicing Function Participant were
the
Securities Administrator. The Securities Administrator shall be
responsible for obtaining from each such Servicing Function Participant and
delivering to the applicable Persons any Assessment of Compliance and related
Attestation Report required to be delivered by such Servicing Function
Participant under Section 3.20, in each
case as and when required to be delivered.
Notwithstanding
the foregoing, if the Securities Administrator engages a Subcontractor in
connection with the performance of any of its duties under this Agreement,
the
Securities Administrator shall be responsible for determining whether such
Subcontractor is an Additional Servicer.
The
Securities Administrator shall indemnify the Depositor, the Sponsor, the
Trustee, the Custodian, the Master Servicer and any of their respective
directors, officers, employees or agents and hold them harmless against any
and
all claims, losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and any other costs, fees
and
expenses that any of them may sustain in any way related to a breach of the
Securities Administrator’s obligation set forth in the preceding paragraph or
the failure of the Securities Administrator to perform any of its obligations
under Section
3.20, Section
3.21, Section
3.22 or this Section
9.01(c).
(d) The
Trustee is hereby directed, on or prior to the Closing Date, not in its
individual capacity but solely on behalf of the Trust, to execute and deliver
the [__________] Servicing Agreement and each assignment, assumption and
recognition agreement constituting a portion of a Servicing Agreement in the
forms presented to it by the Depositor, for the benefit of the Holders of the
Certificates. The Trustee shall not be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable for the breach
or failure of any obligation, representation, warranty or covenant made or
undertaken by the Trustee on behalf of the Trust under any Servicing Agreement
or any other related documents, as to all of which recourse shall be had solely
to the assets of the Trust in accordance with the terms of this
Agreement. Every provision of this Agreement relating to the conduct
or affecting the liability of or affording protection to the Trustee shall
apply
to the Trustee’s execution of any Servicing Agreement and the performance of any
obligations thereunder.
111
(e) Notwithstanding
any other provision of this Agreement, any Servicing Agreement or any other
agreement, the Trustee shall not be required to review, approve or consent
to
any modification proposed to be made by a Servicer or any other Person to any
Mortgage Loan.
Section
9.02 Certain
Matters Affecting
the Trustee and the Securities Administrator.
Except
as
otherwise provided in Section 9.01:
(i) The
Trustee and the Securities Administrator may request and rely upon and shall
be
protected in acting or refraining from acting upon any resolution, Officer’s
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond
or
other paper or document believed by it to be genuine and to have been signed
or
presented by the proper party or parties and the manner of obtaining consents
and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to the reasonable regulations as the Trustee
and the Securities Administrator, as applicable, may prescribe;
(ii) The
Trustee and the Securities Administrator may consult with counsel and any
Opinion of Counsel shall be full and complete authorization and protection
in
respect of any action taken or suffered or omitted by it hereunder in good
faith
and in accordance with such Opinion of Counsel;
(iii) Neither
the Trustee nor the Securities Administrator shall be under any obligation
to
exercise any of the trusts or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in relation hereto
at
the request, order or direction of any of the Certificateholders, pursuant
to
the provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee or the Securities Administrator, as the case may be,
reasonable security or indemnity satisfactory to it against the costs, expenses
and liabilities which may be incurred therein or thereby; however, subject
to
Section 9.01(b)(v),
nothing contained herein shall relieve the Trustee or the Securities
Administrator of the obligation, upon the occurrence of an Event of Default
(which has not been cured or waived), to exercise such of the rights and powers
vested in it by this Agreement, and to use the same degree of care and skill
in
their exercise as a prudent investor would exercise or use under the
circumstances in the conduct of such investor’s own affairs;
(iv) Neither
the Trustee nor the Securities Administrator shall be personally liable for
any
action taken, suffered or omitted by it in good faith and believed by it to
be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(v) Prior
to
the occurrence of an Event of Default hereunder and after the curing or waiving
of all Events of Default which may have occurred, neither the Trustee nor the
Securities Administrator shall be bound to make any investigation into the
facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other paper
or document, unless requested in writing so to do by Holders of Certificates
of
any Class evidencing, as to such Class,
112
Percentage
Interests, aggregating not less than 50%; provided, however, that if
the payment within a reasonable time to the Trustee or the Securities
Administrator of the costs, expenses or liabilities likely to be incurred by
it
in the making of such investigation is, in the opinion of the Trustee or the
Securities Administrator, as the case may be, not reasonably assured to the
Trustee or the Securities Administrator, as applicable, by the security afforded
to it by the terms of this Agreement, the Trustee or the Securities
Administrator, as the case may be, may require reasonable indemnity or security
satisfactory to it against such expense or liability or payment of such
estimated expenses as a condition to so proceeding;
(vi) The
Trustee and the Securities Administrator may each execute any of the trusts
or
powers hereunder or perform any duties hereunder either directly or by or
through agents, attorneys, accountants, custodian or independent contractor;
and
(vii) The
right
of the Trustee or the Securities Administrator to perform any discretionary
act
enumerated in this Agreement shall not be construed as a duty, and neither
the
Trustee nor the Securities Administrator shall be answerable for other than
its
gross negligence or willful misconduct in the performance of any such
act.
Section
9.03 Neither
Trustee nor
Securities Administrator Liable for Certificates or Mortgage
Loans.
The
recitals contained herein and in the Certificates (other than the execution
of,
and the authentication on the Certificates) shall be taken as the statements
of
the Depositor or the Master Servicer, as applicable, and neither the Trustee
nor
the Securities Administrator assumes responsibility for their
correctness. Neither the Trustee nor the Securities Administrator
makes any representations as to the validity or sufficiency of this Agreement
or
of the Certificates or any Mortgage Loans save that the Trustee and the
Securities Administrator represent that, assuming due execution and delivery
by
the other parties hereto, this Agreement has been duly authorized, executed
and
delivered by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, subject, as to enforcement
of remedies, to applicable insolvency, receivership, moratorium and other laws
affecting the rights of creditors generally, and to general principles of equity
and the discretion of the court (regardless of whether enforcement of such
remedies is considered in a proceeding in equity or at law).
Neither
the Trustee nor the Securities Administrator shall at any time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Mortgage or any Mortgage Loan, or the perfection and
priority of any Mortgage or the maintenance of any such perfection and priority
or for or with respect to the sufficiency of the Trust or its ability to
generate the payments to be distributed to Certificateholders under this
Agreement, including, without limitation: the existence, condition and ownership
of any Mortgaged Property; the existence and enforceability of any hazard
insurance thereon (other than if the Trustee shall assume the duties of the
Master Servicer pursuant to Section 8.05 and
thereupon only for the acts or omissions of the Trustee as the successor to
the
Master Servicer); the validity of the assignment of any Mortgage Loan to the
Trustee or of any intervening assignment; the completeness of any Mortgage
Loan;
the performance or enforcement of any Mortgage Loan (other than if the Trustee
shall assume the duties of the Master Servicer pursuant
113
to
Section 8.05
and
thereupon only for the acts or omissions of the Trustee as successor to the
Master Servicer); the compliance by the Depositor or the Master Servicer with
any warranty or representation made under this Agreement or in any related
document or the accuracy of any such warranty or representation; any investment
of monies by or at the direction of the Master Servicer or any loss resulting
therefrom, it being understood that the Trustee and the Securities Administrator
shall remain responsible for any Trust property that it may hold in its
individual capacity; the acts or omissions of any of the Depositor, the Master
Servicer (other than if the Trustee shall assume the duties of the Master
Servicer pursuant to Section 8.05 and
thereupon only for the acts or omissions of the Trustee as successor to the
Master Servicer), or any Mortgagor; any action of the Master Servicer (other
than if the Trustee shall assume the duties of the Master Servicer pursuant
to
Section 8.05 and
thereupon only for the acts or omissions of the Trustee as successor to the
Master Servicer) taken in the name of the Trust or the Securities Administrator;
the failure of the Master Servicer to act or perform any duties required of
it
as agent of the Trust or the Securities Administrator hereunder; or any action
by the Trustee or the Securities Administrator taken at the instruction of
the
Master Servicer (other than if the Trustee shall assume the duties of the Master
Servicer pursuant to Section 8.05 and
thereupon only for the acts or omissions of the Trustee as successor to the
Master Servicer); provided,
however, that the foregoing shall not relieve the Trustee or the
Securities Administrator of its obligation to perform its duties under this
Agreement, including, without limitation, the Trustee’s review of the Mortgage
Files pursuant to Section 2.02. The
Trustee shall file any continuation statement with respect to any financing
statement for which the Trustee is the secured party in any public office at
any
time required to maintain the perfection of any security interest or lien
granted to it hereunder.
Section
9.04 Trustee
and Securities
Administrator May Own Certificates.
Each
of
the Trustee and the Securities Administrator in their individual or any other
capacities may become the owner or pledgee of Certificates with the same rights
it would have if it were not Trustee or the Securities Administrator and may
otherwise deal with the Master Servicer or any of its affiliates with the same
right it would have if it were not the Trustee or the Securities
Administrator.
Section
9.05 Eligibility
Requirements for
Trustee and the Securities Administrator.
The
Trustee and the Securities Administrator hereunder shall at all times be
(a) an institution the deposits of which are fully insured by the FDIC and
(b) a corporation or banking association organized and doing business under
the laws of the United States of America or of any State, authorized under
such
laws to exercise corporate trust powers, having a combined capital and surplus
of not less than $50,000,000.00 and subject to supervision or examination by
Federal or State authority and (c) with respect to every successor trustee
or securities administrator hereunder either an institution (i) the
long-term unsecured debt obligations of which are rated at least “[__]” by
[_____],“[__]” by [_____] and “[__]” by [_____] or (ii) whose serving as
Trustee or Securities Administrator hereunder would not result in the lowering
of the ratings originally assigned to any Class of
Certificates. The Trustee shall not be an affiliate of the Depositor,
the Master Servicer or any Servicer. If such corporation or banking
association publishes reports of condition at least annually, pursuant to law
or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section 9.05,
the
114
combined
capital and surplus of such corporation or banking association shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of
condition so published. The principal office of the Trustee and the
Securities Administrator (other than the initial Trustee or Securities
Administrator) shall be in a state with respect to which an Opinion of Counsel
has been delivered to such Trustee at the time such Trustee or Securities
Administrator is appointed Trustee or Securities Administrator to the effect
that the Trust will not be a taxable entity under the laws of such
state. In case at any time the Trustee or the Securities
Administrator shall cease to be eligible in accordance with the provision of
this Section 9.05,
the Trustee or the Securities Administrator, as the case may be, shall resign
immediately in the manner and with the effect specified in Section 9.06.
The
Securities Administrator (i) may not be an originator, the Master Servicer,
Servicer, the Depositor or an affiliate of the Depositor unless the Securities
Administrator is in an institutional trust department, (ii) must be
authorized to exercise corporate trust powers under the laws of its jurisdiction
of organization, and (iii) must be either an institution (a) the long-term
unsecured debt obligations of which are rated at least “[__]” by [_____], at
least “[__]” by [_____] and at least “[__]” by [_____] and or (b)
whose serving as Securities Administrator hereunder would not result in the
lowering of the ratings originally assigned to any Class of
Certificates. If no successor Securities Administrator shall have
been appointed and shall have accepted appointment within 60 days after the
Securities Administrator ceases to be the Securities Administrator pursuant
to
this Section 9.05,
then the Trustee shall perform the duties of the Securities Administrator
pursuant to this Agreement. Notwithstanding the above, the Trustee
may, if it shall be unwilling so to act, or shall, if it is legally unable
so to
act, appoint, or petition a court of competent jurisdiction to appoint, an
institution qualified under Section 9.05
hereof as the successor to the Securities Administrator hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities
of
a Securities Administrator hereunder; provided, however,
that any such
institution appointed as successor Securities Administrator shall not, as
evidenced in writing by each Rating Agency, adversely affect the then current
rating of any Class of Certificates immediately prior to the termination of
the Securities Administrator. The Trustee shall notify the Rating
Agencies of any change of the Securities Administrator.
Section
9.06 Resignation
and Removal of
Trustee and the Securities Administrator.
The
Trustee or the Securities Administrator may at any time resign and be discharged
from the trust hereby created by giving written notice thereof to the Master
Servicer and the Depositor and mailing a copy of such notice to all Holders
of
record. The Trustee or the Securities Administrator, as applicable,
shall also mail a copy of such notice of resignation to each Rating
Agency. Upon receiving such notice of resignation, the Depositor
shall use its best efforts to promptly appoint a mutually acceptable successor
Trustee or Securities Administrator, as applicable, by written instrument,
in
duplicate, one copy of which instrument shall be delivered to the resigning
Trustee or Securities Administrator, as applicable, and one copy to the
successor Trustee or Securities Administrator, as applicable. If no
successor Trustee or Securities Administrator, as the case may be, shall have
been so appointed and shall have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Trustee or Securities
Administrator may petition any court of competent jurisdiction for the
appointment of a successor Trustee or Securities Administrator.
115
If
at any
time the Trustee or Securities Administrator shall cease to be eligible in
accordance with the provisions of Section 9.05 and
shall fail to resign after written request therefor by the Master Servicer,
or
if at any time the Trustee or the Securities Administrator shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee or the Securities Administrator or of their respective property
shall be appointed, or any public officer shall take charge or control of the
Trustee or the Securities Administrator or of their respective property or
affairs for the purpose of rehabilitation, conservation or liquidation, or
if at
any time the Securities Administrator has failed to duly perform, within the
required time period, its obligations under Section 3.20,
Section 3.21
or
Section 3.22,
then the Master Servicer or the Depositor may remove the Trustee or the
Securities Administrator, as the case may be, and appoint a successor trustee
or
securities administrator by written instrument, in duplicate, one copy of which
instrument shall be delivered to the Trustee or the Securities Administrator,
as
applicable, so removed and one copy to the successor.
The
Holders of Certificates evidencing not less than 50% of the Voting Rights may
at
any time remove the Trustee or the Securities Administrator by written
instrument or instruments delivered to the Master Servicer and the Trustee
or
the Securities Administrator, as applicable; the Master Servicer shall thereupon
use their best efforts to appoint a mutually acceptable successor Trustee or
Securities Administrator, as the case may be, in accordance with this Section 9.06.
Any
resignation or removal of the Trustee or the Securities Administrator and
appointment of a successor Trustee pursuant to any of the provisions of this
Section 9.06
shall become effective upon acceptance of appointment by the successor Trustee
or Securities Administrator, as the case may be, as provided in Section 9.07.
Notwithstanding
anything to the contrary contained herein, the Master Servicer and the
Securities Administrator shall at all times be the same Person.
Section
9.07 Successor
Trustee or
Securities Administrator.
Any
successor Trustee or successor Securities Administrator appointed as provided
in
Section 9.06
shall execute, acknowledge and deliver to the Master Servicer and to its
predecessor Trustee or Securities Administrator, as applicable, an instrument
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor Trustee or Securities Administrator shall become effective
and such successor Trustee or Securities Administrator, as the case may be,
without any further act, deed or conveyance, shall become fully vested with
all
the rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as Trustee or Securities Administrator,
as
applicable, herein. The predecessor Trustee or Securities
Administrator shall duly assign, transfer, deliver and pay over to the successor
Trustee or Securities Administrator, as the case may be, the whole of the
Mortgage Files and related documents and statements held by it hereunder,
together with all instruments of transfer and assignment or other documents
properly executed as may be reasonably required to effect such transfer and
such
of the records or copies thereof maintained by the predecessor Trustee or
Securities Administrator in the administration hereof as may be reasonably
requested by the successor Trustee or Securities Administrator, as the case
may
be, and shall thereupon be discharged from all duties and responsibilities
under
this Agreement; provided, however,
that if
116
the
predecessor Trustee or Securities Administrator has been removed pursuant to
the
third paragraph of Section 9.06,
all reasonable expenses of the predecessor Trustee or Securities Administrator
incurred in complying with this Section 9.07
shall be reimbursed by the Trust.
No
successor Trustee or Securities Administrator shall accept appointment as
provided in this Section 9.07
unless at the time of such appointment such successor Trustee or Securities
Administrator, as the case may be, shall be eligible under the provisions of
Section 9.05.
Upon
acceptance of appointment by a successor Trustee or Securities Administrator,
as
applicable, as provided in this Section 9.07,
the Master Servicer shall cooperate to mail notice of the succession of such
Trustee or Securities Administrator, as the case may be, hereunder to all
Holders of Certificates at their addresses as shown in the Certificate Register
and to each Rating Agency. If the Master Servicer fails to mail such
notice within ten days after acceptance of appointment by the successor
Trustee or Securities Administrator, the successor Trustee or Securities
Administrator, as the case may be, shall cause such notice to be mailed at
the
expense of the Master Servicer.
Section
9.08 Merger
or Consolidation of
Trustee or Securities Administrator.
Any
corporation or banking association into which either the Trustee or the
Securities Administrator may be merged or converted or with which it may be
consolidated, or any corporation or banking association resulting from any
merger, conversion or consolidation to which the Trustee or the Securities
Administrator shall be a party, or any corporation or banking association
succeeding to all or substantially all of the corporate trust business of the
Trustee or the Securities Administrator, shall be the successor of the Trustee
or the Securities Administrator, as applicable, hereunder, if such corporation
or banking association is eligible under the provisions of Section 9.05,
without the execution or filing of any paper or any further act on the part
of
any of the parties hereto, anything herein to the contrary
notwithstanding. In connection with the succession to the Trustee or
the Securities Administrator under this Agreement by any Person (i) into
which the Trustee or the Securities Administrator may be merged or consolidated,
or (ii) which may be appointed as a successor to the Trustee or the
Securities Administrator, the Trustee or the Securities Administrator, as the
case may be, shall notify the Depositor of such succession or appointment and
shall furnish to the Depositor in writing and in form and substance reasonably
satisfactory to the Depositor, all information reasonably necessary for the
Securities Administrator to accurately and timely report, pursuant to Section 3.22(d),
the event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if such
reports under the Exchange Act are required to be filed under the Exchange
Act).
Section
9.09 Appointment
of Co-Trustee or
Separate Trustee.
Notwithstanding
any of the provisions hereof, at any time, for the purpose of meeting any legal
requirements of any jurisdiction in which any Mortgaged Property may at the
time
be located or for any other reason, the Master Servicer and the Trustee acting
jointly shall have the power and shall execute and deliver all instruments
to
appoint one or more Persons approved by the Trustee as co-trustee or separate
trustee of all or any part of the Trust Estate, and to vest in such Person
or
Persons, in such capacity, such title to the Trust Estate, or any part thereof,
and, subject to the other provision of this Section 9.09,
such powers, duties, obligations, rights and
117
trusts
as
the Master Servicer and the Trustee may consider necessary or
desirable. If one or both of the Master Servicer shall not have
joined in such appointment within ten days after the receipt by it of a
request to do so, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor Trustee under Section 9.05 and
no notice to Holders of Certificates of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 9.07.
The Securities Administrator shall be responsible for the fees of any co-trustee
or separate trustee appointed hereunder.
In
the
case of any appointment of a co-trustee or separate trustee pursuant to this
Section 9.09,
all rights, powers, duties and obligations conferred or imposed upon the Trustee
shall be conferred or imposed upon and exercised or performed by the Trustee
and
such separate trustee or co-trustee jointly, except to the extent that under
any
law of any jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to the Master Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such act or acts,
in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust Estate or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at
the
direction of the Trustee. No trustee hereunder shall be held
personally liable by reason of any act or omission of any other trustee
hereunder; provided,
however,
that no
appointment of a co-trustee or separate trustee hereunder shall relieve the
Trustee of its obligations hereunder.
Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate
trustee or co-trustee shall refer to this Agreement and the conditions of this
Article IX. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the
Trustee.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee, its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee
shall become incapable of acting, resign or be removed, or shall be adjudged
a
bankrupt or insolvent, or a receiver of its property shall be appointed, or
any
public officer shall take charge or control of such trustee or co-trustee or
of
its property or affairs for the purpose of rehabilitation, conservation or
liquidation, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
Section
9.10 Authenticating
Agents.
The
Securities Administrator may appoint one or more authenticating agents (“Authenticating
Agents”) that shall be authorized to act on behalf of the Securities
Administrator in authenticating or countersigning
Certificates. Initially, the Authenticating
118
Agent
shall be [__________]. Wherever reference is made in this Agreement
to the authentication or countersigning of Certificates by the Securities
Administrator or the Securities Administrator’s certificate of authentication or
countersigning, such reference shall be deemed to include authentication or
countersigning on behalf of the Securities Administrator by an Authenticating
Agent and a certificate of authentication or countersignature executed on behalf
of the Securities Administrator by an Authenticating Agent. Each
Authenticating Agent must be acceptable to the Master Servicer and must be
a
corporation or banking association organized and doing business under the laws
of the United States of America or of any State, having a place of business
in
New York, New York, having a combined capital and surplus of at least
$15,000,000, authorized under such laws to do a trust business and subject
to
supervision or examination by Federal or State authorities.
Any
corporation or banking association into which any Authenticating Agent may
be
merged or converted or with which it may be consolidated, or any corporation
or
banking association resulting from any merger, conversion or consolidation
to
which any Authenticating Agent shall be a party, or any corporation or banking
association succeeding to the corporate agency business of any Authenticating
Agent, shall continue to be the Authenticating Agent without the execution
or
filing of any paper or any further act on the part of the Securities
Administrator or the Authenticating Agent.
Any
Authenticating Agent may at any time resign by giving written notice of
resignation to the Securities Administrator and to the Master
Servicer. The Securities Administrator may at any time terminate the
agency of any Authenticating Agent by giving written notice of termination
to
such Authenticating Agent and to the Master Servicer. Upon receiving
a notice of resignation or upon such a termination, or in case, at any time
any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 9.10,
the Securities Administrator may appoint a successor Authenticating Agent,
shall
give written notice of such appointment to the Master Servicer and shall mail
notice of such appointment to all Certificateholders. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent.
Section
9.11 Securities
Administrator’s
Fees and Expenses and Trustee’s Fees and Expenses.
The
Trustee, as compensation for its services hereunder, shall be entitled to a
fee
in an amount agreed upon between the Trustee and the Securities Administrator,
payable by the Securities Administrator out of its own funds and not out of
any
funds of the Trust Estate. The Securities Administrator shall be entitled to
investment income from amounts on deposit in the Certificate Account as
compensation for its services hereunder. The Trustee and the
Securities Administrator, as the case may be, and any director, officer,
employee or agent of the Trustee or the Securities Administrator, as the case
may be, shall be indemnified and held harmless by the Trust against any claims,
damage, loss, liability or expense (including reasonable attorney’s fees)
(a) incurred in connection with any claim or legal action arising from or
relating to (i) this Agreement, (ii) the Certificates, or
(iii) the performance of any of the Trustee’s or Securities
Administrator’s, as the case may be, duties hereunder, other than any claims,
damage, loss, liability or expense incurred by reason of willful misfeasance,
bad faith or gross negligence in
119
the
performance of any of the Trustee’s or Securities Administrator’s, as the case
may be, duties hereunder, (b) resulting from any tax or information return
which was prepared by, or should have been prepared by, the Master Servicer
and
(c) arising out of the transfer of any ERISA Restricted Certificate or the
Residual Certificate not in compliance with ERISA. Without limiting
the foregoing, except as otherwise agreed upon in writing by the Depositor
and
the Trustee or the Securities Administrator, and except for any such expense,
disbursement or advance as may arise from the Trustee’s or the Securities
Administrator’s gross negligence, bad faith or willful misconduct, the Trust
shall reimburse the Trustee and the Securities Administrator for all reasonable
expenses, disbursements and advances incurred or made by the Trustee or the
Securities Administrator in accordance with any of the provisions of this
Agreement to the extent permitted by Treasury Regulations
Section 1.860G-1(b)(3)(ii) and (iii). Except as otherwise
provided herein, neither the Trustee nor the Securities Administrator shall
be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee or the Securities Administrator, as applicable, in the ordinary
course of its duties as Trustee or Securities Administrator, Certificate
Registrar or Paying Agent hereunder or for any other expenses. The
provisions of this Section 9.11
shall survive the termination of this Agreement or the resignation or removal
of
the Trustee or the Securities Administrator, as applicable,
hereunder.
Section
9.12 Appointment
of
Custodian.
The
Trustee may at any time on or after the Closing Date, with the consent of the
Depositor and the Master Servicer, appoint one or more Custodians to hold all
or
a portion of the Mortgage Files as agent for the Trustee, by entering into
a
custodial agreement in a form acceptable to the Depositor and the Master
Servicer. Subject to this Article IX, the Trustee agrees to enforce
the terms and provisions thereof against the Custodian for the benefit of the
Certificateholders. Each Custodian shall be a depository institution subject
to
supervision by federal or state authority, shall have a combined capital and
surplus of at least $10,000,000 and shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File.
Each
Custodian shall indemnify the Depositor, the Sponsor, the Trustee, the Master
Servicer, the Securities Administrator and any of their respective directors,
officers, employees or agents and hold them harmless against any and all claims,
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and any other reasonable costs, fees and
expenses that any of them may sustain in any way related to the failure of
a
Custodian to perform any of its obligations under Section
3.21. Notwithstanding the foregoing, in no event shall a
Custodian be liable for any consequential, indirect or punitive damages pursuant
to this Section
9.12.
Section
9.13 Paying
Agents.
The
Securities Administrator may appoint one or more Paying Agents (each, a “Paying
Agent”) which shall be authorized to act on behalf of the Securities
Administrator in making withdrawals from the Certificate Account and
distributions to Certificateholders as provided in Section 3.09 and
Section 5.02. Wherever
reference is made in this Agreement to the withdrawal from the Certificate
Account by the Securities Administrator, such reference shall be deemed to
include such a withdrawal on behalf of the Securities Administrator by a Paying
Agent. Initially,
120
the
Paying Agent shall be [__________]. Whenever reference is made in
this Agreement to a distribution by the Securities Administrator or the
furnishing of a statement by the Securities Administrator, such reference shall
be deemed to include such a distribution or furnishing on behalf of the
Securities Administrator by a Paying Agent. Each Paying Agent shall
provide to the Securities Administrator such information concerning the
Certificate Account as the Securities Administrator shall request from time
to
time. Each Paying Agent must be reasonably acceptable to the Master
Servicer and must be a corporation or banking association organized and doing
business under the laws of the United States of America or of any state, having
(except in the case of the Trustee or the Securities Administrator) a principal
office and place of business in New York, New York, having a combined capital
and surplus of at least $15,000,000, authorized under such laws to do a trust
business and subject to supervision or examination by federal or state
authorities. Any fees and expenses (but not including any indemnity
payments) of a Paying Agent appointed pursuant to this Agreement shall be
payable by the Securities Administrator out of its own funds and not out of
any
funds in the Trust Estate.
Any
corporation into which any Paying Agent may be merged or converted or with
which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which any Paying Agent shall be a party, or any corporation
succeeding to the corporate agency business of any Paying Agent, shall continue
to be the Paying Agent provided that such corporation after the consummation
of
such merger, conversion, consolidation or succession meets the eligibility
requirements of this Section 9.13.
Any
Paying Agent may at any time resign by giving written notice of resignation
to
the Trustee, the Securities Administrator and to the Master Servicer; provided that the Paying
Agent has returned to the Certificate Account or otherwise accounted, to the
reasonable satisfaction of the Securities Administrator, for all amounts it
has
withdrawn from the Certificate Account. The Securities Administrator
may, upon prior written approval of the Master Servicer, at any time terminate
the agency of any Paying Agent by giving written notice of termination to such
Paying Agent and to the Master Servicer. Upon receiving a notice of
resignation or upon such a termination, or in case at any time any Paying Agent
shall cease to be eligible in accordance with the provisions of the first
paragraph of this Section 9.13,
the Securities Administrator may appoint, upon prior written approval of the
Master Servicer, a successor Paying Agent, shall give written notice of such
appointment to the Master Servicer and shall mail notice of such appointment
to
all Certificateholders. Any successor Paying Agent upon acceptance of
its appointment hereunder shall become vested with all rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Paying Agent. The Securities Administrator shall remain
liable for any duties and obligations assumed by its appointed Paying
Agent.
Section
9.14 Limitation
of
Liability.
The
Certificates are executed by the Securities Administrator, not in its individual
capacity but solely as Securities Administrator of the Trust, in the exercise
of
the powers and authority conferred and vested in it by this
Agreement. Each of the undertakings and agreements made on the part
of the Securities Administrator in the Certificates is made and intended not
as
a personal undertaking or agreement by the Securities Administrator but is
made
and intended for the purpose of binding only the Trust.
121
Section
9.15 Trustee
or Securities
Administrator May Enforce Claims Without Possession of
Certificates.
All
rights of action and claims under this Agreement or the Certificates may be
prosecuted and enforced by the Trustee or the Securities Administrator without
the possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and such preceding instituted by the Trustee or
the
Securities Administrator shall be brought in its own name or in its capacity
as
Trustee or Securities Administrator. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursement and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Certificateholders in respect of which such judgment
has
been recovered.
Section
9.16 Suits
for
Enforcement.
In
case
an Event of Default or other default by the Master Servicer or the Depositor
hereunder shall occur and be continuing, the Trustee, in its discretion, may
proceed to protect and enforce its rights and the rights of the Holders of
Certificates under this Agreement by a suit, action or proceeding in equity
or
at law or otherwise, whether for the specific performance of any covenant or
agreement contained in this Agreement or in aid of the execution of any power
granted in this Agreement or for the enforcement of any other legal, equitable
or other remedy, as the Trustee, being advised by counsel, shall deem most
effectual to protect and enforce any of the rights of the Trustee and the
Certificateholders.
Section
9.17 Waiver
of Bond
Requirement.
The
Trustee shall be relieved of, and each Certificateholder hereby waives, any
requirement of any jurisdiction in which the Trust, or any part thereof, may
be
located that the Trustee post a bond or other surety with any court, agency
or
body whatsoever.
Section
9.18 Waiver
of Inventory,
Accounting and Appraisal Requirement.
The
Trustee shall be relieved of, and each Certificateholder hereby waives, any
requirement of any jurisdiction in which the Trust, or any part thereof, may
be
located that the Trustee file any inventory, accounting or appraisal of the
Trust with any court, agency or body at any time or in any manner
whatsoever.
ARTICLE
X
TERMINATION
Section
10.01 Termination
upon Purchase or
Liquidation of All Mortgage Loans.
Subject
to Section 10.02,
the respective obligations and responsibilities of the Depositor, the Master
Servicer, the Securities Administrator and the Trustee created hereby (other
than the obligation of the Securities Administrator to make certain payments
to
Certificateholders after the Final Distribution Date and to send certain notices
as hereinafter set forth and the obligations of the Securities Administrator
pursuant to Sections 5.05(b) and
5.06(b))
shall
terminate upon the
122
last
action required to be taken by the Securities Administrator on the Final
Distribution Date pursuant to this Article X following the earlier of
(a) the purchase by the [__________] of all of the Mortgage Loans and all
related REO Property remaining in the Trust Estate at a price equal to the
sum
of (x) 100% of the unpaid principal balance of each Mortgage Loan (other than
any Mortgage Loan as to which REO Property has been acquired and whose fair
market value is included pursuant to clause (y) below), (y) the fair market
value of such REO Property plus one month’s interest at the related Mortgage
Interest Rate on the unpaid principal balance of each Mortgage Loan (including
any Mortgage Loan as to which REO Property has been acquired) and (z) any
Reimbursement Amount owed to the Trust pursuant to Section 2.02 related
to a Mortgage Loan or (b) the final payment or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan remaining in the Trust Estate
or
the disposition of all REO Property.
No
party
may exercise its purchase option with respect to the applicable Mortgage Loans,
until all Reimbursement Amounts for such Mortgage Loans have been
paid. The Securities Administrator shall notify the Sponsor, upon
notice of a party’s intent to exercise its purchase option of any related
Reimbursement Amount outstanding.
Regardless
of the foregoing, in no event shall the Trust created hereby continue beyond
the
expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United States
to
the Court of St. Xxxxx, living on the date hereof.
The
right
of [__________] to exercise its purchase option with respect to (a) the Group
J
Mortgage Loans is conditioned upon (i) the aggregate Stated Principal Balance
of
all the Group J Mortgage Loans being less than 10% of the aggregate unpaid
principal balance of all the Group J Mortgage Loans as of the Cut-off Date
and
(ii) the purchase price calculated pursuant to clause (a) of the first paragraph
of this Section
10.01 with respect to the Group J Mortgage Loans and related REO
Properties being less than or equal to the aggregate fair market value of the
Group J Mortgage Loans (other than any Group J Mortgage Loan as to which REO
Property has been acquired) and the related REO Properties; provided, however,
that this clause
(ii) shall not apply to any purchase by [__________] if, at the time of the
purchase, the [__________] is no longer subject to regulation by the Office
of
the Comptroller of the Currency, the FDIC, the Federal Reserve or the OTS and
(b) the Group X Mortgage Loans is conditioned upon (i) the aggregate Stated
Principal Balance of all the Group X Mortgage Loans being less than 10% of
the
aggregate unpaid principal balance of all the Group X Mortgage Loans as of
the
Cut-off Date and (ii) the purchase price calculated pursuant to clause (a)
of
the first paragraph of this Section 10.01 with
respect to the Group X Mortgage Loans and related REO Properties being less
than
or equal to the aggregate fair market value of the Group X Mortgage Loans (other
than any Group X Mortgage Loan as to which REO Property has been acquired)
and
the related REO Properties; provided, however,
that this clause
(ii) shall not apply to any purchase by the [__________] if, at the time of
the
purchase, the [__________] is no longer subject to regulation by the Office
of
the Comptroller of the Currency, the FDIC, the Federal Reserve or the
OTS. Fair market value for purposes of this paragraph and the first
paragraph of this Section 10.01 will be
determined by the [__________] as of the close of business on the third Business
Day next preceding the date upon which notice of any such termination is
furnished to Certificateholders pursuant to this Article X. If such
right is exercised, the Trustee (or Custodian on the Trustee’s behalf) shall,
promptly
123
following
payment of the purchase price, release to the [__________] or its designee
the
Mortgage Files pertaining to the Mortgage Loans being purchased. The
[__________]’s right, title and interest in and to such purchased Mortgage Loans
and the related Mortgage Files shall be subject to the servicing rights of
the
Servicers pursuant to the related Servicing Agreements.
Notice
of
the exercise of any purchase option pursuant to this Section 10.01 and
notice of any termination of the Trust or any portion of the Trust, specifying
the Final Distribution Date or the applicable Distribution Date, upon which
the
applicable Certificateholders may surrender their Certificates to the Securities
Administrator for payment of the final distribution and for cancellation, shall
be given promptly by the Securities Administrator by letter to the
Certificateholders mailed not earlier than the 10th day and not later than
the 15th day of the month next preceding the month of such final
distribution specifying (1) the Final Distribution Date or the applicable
Distribution Date, upon which final payment of the applicable Certificates
will
be made upon presentation and surrender of such Certificates at the office
or
agency of the Securities Administrator therein designated, (2) the amount
of any such final payment and (3) that the Record Date otherwise applicable
to such Distribution Date is not applicable, payments being made only upon
presentation and surrender of the applicable Certificates at the office or
agency of the Securities Administrator therein specified.
Upon
the
exercise of its purchase option, the applicable party shall remit to the
Securities Administrator for deposit to the Certificate Account on or before
the
Final Distribution Date or the applicable Distribution Date, in immediately
available funds an amount equal to the amount necessary to make the amount,
if
any, on deposit in the Certificate Account on such Final Distribution Date
or
Distribution Date, as applicable, equal to the purchase price for the related
assets of the Trust Estate or any portion of the Trust Estate computed as above
provided together with a statement as to the amount to be distributed on each
applicable Class of Certificates pursuant to the next succeeding
paragraph.
Upon
the
exercise of any purchase option pursuant to this Section 10.01, the
Trustee shall assign to the applicable party exercising its purchase option
each
of the applicable mortgage loan representations and warranties made pursuant
to
the applicable Servicing Agreement and the Mortgage Loan Purchase Agreement,
without recourse, representation or warranty. Not less than five (5)
Business Days prior to the Final Distribution Date, the Securities Administrator
shall notify the Depositor of the amount of any unpaid Reimbursement Amount
owed
to the Trust and the Sponsor shall deposit such amount in the Certificate
Account not later than the Business Day preceding the Final Distribution
Date.
Upon
presentation and surrender of the Certificates, the Securities Administrator
shall cause to be distributed to Certificateholders of each Class, in the order
set forth in Section
5.02 hereof, on the Final Distribution Date and in proportion to their
respective Percentage Interests, with respect to Certificateholders of the
same
Class, an amount equal to (I) as to each Class of Certificates, the Class
Certificate Balance thereof plus accrued interest thereon, and (II) as to
the Class 2-A-R Certificate, the amounts, if any, which remain on deposit (or
are deemed to remain on deposit) in the Upper-Tier Certificate Sub-Account,
the
Middle-Tier Certificate Sub-Account, the Lower-Tier Certificate Sub-Account
and
the Certificate Account, respectively (other than the amounts retained to meet
claims) after application pursuant to clause (I) above. An
amount shall be distributed in respect of interest and principal to the
Uncertificated Lower-Tier Interests and
124
the
Uncertificated Middle-Tier Interests in the same manner as principal and
interest are distributed to the Uncertificated Lower-Tier Interests and the
Uncertificated Middle-Tier Interests, respectively, as provided in Section
5.02.
If
the
applicable Certificateholders do not surrender their Certificates for final
payment and cancellation on or before the Final Distribution Date, the
Securities Administrator shall on such date cause all related funds in the
Certificate Account not distributed in final distribution to such
Certificateholders of such Group to continue to be held by the Securities
Administrator in an Eligible Account for the benefit of such Certificateholders
and the Securities Administrator shall give a second written notice to the
remaining applicable Certificateholders to surrender their Certificates for
cancellation and receive a final distribution with respect
thereto. If within one (1) year after the second notice all the
applicable Certificates shall not have been surrendered for cancellation, the
Securities Administrator may take appropriate steps, or may appoint an agent
to
take appropriate steps, to contact the remaining applicable Certificateholders
concerning surrender of their Certificates, and the cost thereof shall be paid
out of the funds on deposit in such Eligible Account.
Section
10.02 Additional
Termination
Requirements.
(a) (i) If
a party exercises its purchase option as provided in Section 10.01,
the related REMIC or REMICs shall be terminated in accordance with the following
additional requirements, unless the Securities Administrator and the Trustee
have received an Opinion of Counsel to the effect that the failure of the Trust
to comply with the requirements of this Section 10.02
will not (x) result in the imposition of taxes on “prohibited transactions”
or “prohibited contributions” in respect of any REMIC created hereunder as
defined in the REMIC Provisions, or (y) cause any REMIC created hereunder
to fail to qualify as a REMIC at any time that any related Certificates are
outstanding:
(ii) Within
90
days prior to the related Final Distribution Date set forth in the notice given
by the Securities Administrator pursuant to Section 10.01, the
Securities Administrator shall adopt plans of liquidation for each related
REMIC
created hereunder specifying the first day in the 90-day liquidation period
and
meeting the requirements of a “qualified liquidation” under Section 860F of the
Code and any regulations thereunder. The Securities Administrator
shall attach such plans of liquidation to each related REMIC’s final tax
return;
(iii) During
such 90-day liquidation period, and at or prior to the time of making the final
payment on the related Certificates, the Trustee shall sell the related Mortgage
Loans and REO Properties to the [__________], for cash;
(iv) On
the
date specified for final payment on the related Certificates, the Securities
Administrator shall make final distributions of principal and interest on the
related Certificates in accordance with Section 5.02 and
shall distribute or credit, or cause to be distributed or credited, to the
Holder of the Residual Certificate all cash on hand in the related REMICs after
such final payment (other than cash retained to meet claims) in complete
liquidation of the related REMICs; and
125
(v) The
Middle-Tier REMIC and the Upper-Tier REMIC will be terminated on the same date
that the Lower-Tier REMIC is terminated.
(b) By
its
acceptance of the Residual Certificate, the Holder thereof hereby agreed to
take
such other action in connection with such plan of complete liquidation as may
be
reasonably requested by the Depositor, the Trustee or the Securities
Administrator and if such action is not requested, is deemed to adopt such
a
plan of complete liquidation when the related Mortgage Loans are purchased
pursuant to Section 10.01.
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
Section
11.01 Amendment.
This
Agreement may be amended from time to time by the Depositor, the Master
Servicer, the Securities Administrator and the Trustee, without the consent
of
any of the Certificateholders, (i) to cure any ambiguity or mistake,
(ii) to correct or supplement any provisions herein or therein which may be
inconsistent with any other provisions of this Agreement, any amendment to
this
Agreement or the related Prospectus Supplement, (iii) to modify, eliminate
or add to any of its provisions to such extent as shall be necessary to maintain
the qualification of any REMIC created hereunder as a REMIC within the meaning
of the Code and related regulations at all times that any related Certificates
are outstanding or to avoid or minimize the risk of the imposition of any tax
on
any REMIC created hereunder pursuant to the Code that would be a claim against
the Trust Estate, provided that (a) the
Trustee and the Securities Administrator have received an Opinion of Counsel
to
the effect that such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such
tax
and (b) such action shall not, as evidenced by such Opinion of Counsel,
adversely affect in any material respect the interests of any Certificateholder,
(iv) to change the timing and/or nature of deposits into the Certificate
Account provided that
(a) such change shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Certificateholder and
(b) such change shall not adversely affect the then-current rating of the
Certificates as evidenced by a letter from each Rating Agency rating such
Certificates to such effect, and (v) to make any other provisions with
respect to matters or questions arising under this Agreement which shall not
be
materially inconsistent with the provisions of this Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder, provided that the amendment
shall not be deemed to adversely affect in any material respect the interests
of
the Certificateholders and no Opinion of Counsel to that effect shall be
required if the Person requesting the amendment obtains a letter from each
Rating Agency stating that the amendment would not result in the downgrading
or
withdrawal of the respective ratings then assigned to the
Certificates. Notwithstanding any contrary provision of this
Agreement, the Trustee shall not consent to any amendment to this Agreement
pursuant to clause (i) through (vi) above unless it shall have first
received an Opinion of Counsel to the effect that such amendment shall not
cause
the imposition of any tax on any REMIC created hereunder or the
Certificateholders or cause any REMIC created hereunder to fail to qualify
as a
REMIC within the meaning of the Code and related regulations at any time that
any Certificates are outstanding.
126
This
Agreement may also be amended from time to time by the Depositor, the Master
Servicer, the Securities Administrator and the Trustee and the Holders of
Certificates of each Class of Certificates which is affected by such
amendment, evidencing, as to each such Class of Certificates, Percentage
Interests aggregating not less than 66-2/3%, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of
this Agreement or of modifying in any manner the rights of the Holders of such
Certificates; provided,
however, that no such amendment shall (A) reduce in any manner the
amount of, or delay the timing of, collections of payments on Mortgage Loans
or
distributions which are required to be made on any Certificate without the
consent of the Holder of such Certificate or (B) reduce the aforesaid
percentage required to consent to any such amendment, without the consent of
the
Holders of all Certificates then outstanding.
Prior
to
the solicitation of consent of Certificateholders in connection with any such
amendment, the party seeking such amendment shall furnish the Trustee and the
Securities Administrator with an Opinion of Counsel stating that such amendment
would not adversely affect the qualification of any REMIC created hereunder
as a
REMIC within the meaning of the Code and related regulations or result in the
imposition of any tax on any REMIC created hereunder and notice of the
conclusion expressed in such Opinion of Counsel shall be included with any
such
solicitation.
Promptly
after the execution of any such amendment or consent the Securities
Administrator shall furnish written notification of the substance of or a copy
of such amendment to each Certificateholder and to each Rating
Agency.
It
shall
not be necessary for the consent of Certificateholders under this Section 11.01 to
approve the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Securities Administrator may prescribe.
Prior
to
the execution of any amendment to this Agreement, each of the Trustee and the
Securities Administrator shall receive and be entitled to conclusively rely
on
any Opinion of Counsel (at the expense of the Person seeking such amendment)
stating that such amendment is authorized and permitted by this
Agreement. The Trustee and the Securities Administrator may, but
shall not be obligated to, enter into any such amendment which affects the
Trustee’s or the Securities Administrator’s own rights, duties or immunities
under this Agreement.
Section
11.02 Recordation
of Agreement;
Counterparts.
This
Agreement is subject to recordation in all appropriate public offices for real
property records in all the counties or other comparable jurisdictions in which
any or all of the properties subject to the Mortgages are situated, and in
any
other appropriate public recording office or elsewhere, such recordation to
be
effected by the Securities Administrator at its expense at the direction of
Holders of Certificates evidencing not less than 50% of all Voting Rights,
but
only upon delivery to the Securities Administrator at the expense of the
requesting Certificateholders of an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of
Certificateholders.
127
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 Securities Administrator a written
notice of default and of the continuance thereof, as provided herein, and unless
also the Holders of Certificates evidencing Percentage Interests aggregating
not
less than 25% of each Class of Certificates affected thereby shall have
made written request upon the Securities Administrator to institute such action,
suit or proceeding in its own name as Securities Administrator hereunder and
shall have offered to the Securities Administrator such reasonable indemnity
as
it may require against the costs, expenses and liabilities to be incurred
therein or thereby, and the Securities Administrator, for 60 days after its
receipt of such notice, request and offer of indemnity, shall have neglected
or
refused to institute any such action, suit or proceeding; it being understood
and intended, and being expressly covenanted by each Certificateholder with
every other Certificateholder and the Securities Administrator, that no one
or
more Holders of Certificates shall have any right in any manner whatever by
virtue or by availing itself or themselves of any provisions of this Agreement
to affect, disturb or prejudice the rights of the Holders of any other of the
Certificates, or to obtain or seek to obtain priority over or preference to
any
other such Holder, or to enforce any right under this Agreement, except in
the
manner herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the
provisions of this Section 11.03,
each and every Certificateholder and the Securities Administrator shall be
entitled to such relief as can be given either at law or in equity.
Section
11.04 Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE
128
DETERMINED
IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS
THEREOF (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).
With
respect to any claim arising out of this Agreement, each party irrevocably
submits to the exclusive jurisdiction of the courts of the State of New York
and
the United States District Court located in the Borough of Manhattan in The
City
of New York, and each party irrevocably waives any objection which it may have
at any time to the laying of venue of any suit, action or proceeding arising
out
of or relating hereto brought in any such courts, irrevocably waives any claim
that any such suit, action or proceeding brought in any such court has been
brought in any inconvenient forum and further irrevocably waives the right
to
object, with respect to such claim, suit, action or proceeding brought in any
such court, that such court does not have jurisdiction over such party, provided that service of
process has been made by any lawful means.
Section
11.05 Notices.
All
demands, notices, instructions, directions, requests and communications required
or permitted to be delivered hereunder shall be in writing and shall be deemed
to have been duly given if personally delivered at or mailed by certified mail,
return receipt requested, (provided, however,
that notices to the
Securities Administrator may be delivered by facsimile and shall be deemed
effective upon receipt) to (a) in the case of the Depositor, Banc of
America Funding Corporation, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Xxxxx Xxxxx, with a copy to:
Bank of America Legal Department, 000 Xxxxx Xxxxx Xxxxxx, 30th Floor,
NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Associate
General Counsel, (b) in the case of the Master Servicer, [__________],
Attention: [__________], (c) in the case of the Securities Administrator,
[__________], Attention: [__________], (d) in the case of the Trustee,
[__________],[__________], Attention: [__________], (e) in the case of
[__________],[__________], Attention: [__________], (f) in the case
of [__________],[__________], Attn: [__________], and (g) in the
case of [__________],[__________], Attn: [__________] 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.
129
It
is the
intention of the Securities Administrator that Certificateholders shall not
be
personally liable for obligations of the Trust Estate, that the beneficial
ownership interests represented by the Certificates shall be nonassessable
for
any losses or expenses of the Trust Estate or for any reason whatsoever, and
that Certificates upon execution, authentication and delivery thereof by the
Securities Administrator pursuant to Section 6.01 are
and shall be deemed fully paid.
Section
11.08 Access
to List of
Certificateholders.
The
Certificate Registrar will furnish or cause to be furnished to the Trustee
and
the Securities Administrator, within fifteen (15) days after the receipt of
a request by the Trustee and/or the Securities Administrator in writing, a
list,
in such form as the Trustee and/or the Securities Administrator may reasonably
require, of the names and addresses of the Certificateholders as of the most
recent Record Date for payment of distributions to
Certificateholders.
If
three
or more Certificateholders apply in writing to the Securities Administrator,
and
such application states that the applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates and is accompanied by a copy of the communication which such
applicants propose to transmit, then the Securities Administrator shall, within
five (5) Business Days after the receipt of such application, afford such
applicants access during normal business hours to the most recent list of
Certificateholders held by the Securities Administrator. If such a
list is as of a date more than 90 days prior to the date of receipt of such
applicants’ request, the Securities Administrator shall promptly request from
the Certificate Registrar a current list as provided above, and shall afford
such applicants access to such list promptly upon receipt.
Every
Certificateholder, by receiving and holding such list, agrees with the
Certificate Registrar and the Securities Administrator that neither the
Certificate Registrar nor the Securities Administrator shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Certificateholders hereunder, regardless of the source from
which such information was derived.
Section
11.09 Recharacterization.
The
parties to this Agreement intend the conveyance by the Depositor to the Trustee
of all of its right, title and interest in and to the Mortgage Loans and the
related Mortgage Files, including all interest and principal received on or
with
respect to the Mortgage Loans (other than payments of principal and interest
due
and payable on the Mortgage Loans on or before the Cut-off Date) and the
Depositor’s rights under the Mortgage Loan Purchase Agreement, including the
rights of the Depositor as assignee of the Sponsor with respect to the Sponsor’s
rights under the Servicing Agreements pursuant to this Agreement to constitute
a
purchase and sale and not a loan. Notwithstanding the foregoing, to
the extent that such conveyance is held not to constitute a sale under
applicable law, it is intended that this Agreement shall constitute a security
agreement under applicable law and that the Depositor shall be deemed to have
granted to the Trustee a first priority security interest in all of the
Depositor’s right, title and interest in and to the Mortgage Loans.
130
Section
11.10 Regulation
AB Compliance;
Intent of the Parties; Reasonableness.
The
parties hereto acknowledge that interpretations of the requirements of
Regulation AB may change over time, whether due to interpretive guidance
provided by the Commission or its staff, consensus among participants in the
asset-backed securities markets, advice of counsel, or otherwise, and agree
to
use its commercially reasonable efforts to comply with requests made by the
Depositor in good faith for delivery of information under these provisions
on
the basis of evolving interpretations of Regulation AB. In connection
with the Trust, the Master Servicer, the Securities Administrator, the Trustee
and the Custodian shall cooperate fully with the Depositor to deliver to the
Depositor (including its assignees or designees), any and all statements,
reports, certifications, records and any other information available to such
party and reasonably necessary in the good faith determination of the Depositor
to permit the Depositor to comply with the provisions of Regulation AB, together
with such disclosures relating to the Master Servicer, the Securities
Administrator, the Trustee and the Custodian, as applicable, reasonably believed
by the Depositor to be necessary in order to effect such
compliance.
Section
11.11 Third
Party
Beneficiary.
Nothing
in this Agreement or in the Certificates, expressed or implied, shall give
to
any Person, other than the Certificateholders, the parties hereto and their
successors hereunder, any benefit or any legal or equitable right, remedy or
claim under this Agreement.
Section
11.12 Insolvency.
The
Master Servicer, the Depositor and Trustee shall each notify the Securities
Administrator of any of the events enumerated in Item 1.03 of Form 8-K with
respect to such party upon the occurrence thereof and shall provide the
Securities Administrator with all information required by the Securities
Administrator to comply with its reporting obligation under Item 1.03 of Form
8-K, any such notice and related information to be provided promptly (but in
no
event later than one Business Day) after the occurrence of such
event.
131
IN
WITNESS WHEREOF, the Depositor, the Master Servicer, the Securities
Administrator and the Trustee have caused this Agreement to be duly executed
by
their respective officers thereunto duly authorized to be hereunto affixed,
all
as of the day and year first above written.
BANC
OF
AMERICA FUNDING CORPORATION, as Depositor
By: ______________________________________________
Name:
Title:
[____________________],
as Master Servicer
By: ______________________________________________
Name:
Title:
[____________________],
as Securities Administrator
By: ______________________________________________
Name:
Title:
[____________________],
as Trustee
By: ______________________________________________
Name:
Title:
[Signature
Page to the Pooling and Servicing Agreement]
STATE
OF
NORTH
CAROLINA
)
)
ss.:
COUNTY
OF
MECKLENBURG
)
)
On
the __
day of [month], [year], 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 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
[__________________] )
) ss:
COUNTY
OF
[___________
)
)
On
the
___ day of [month], [year], before me, a notary public in and for the State
of
______________, personally appeared ____________, known to me who, being by
me
duly sworn, did depose and say that he is an ______________ of ____________,
a
____________, one of the parties that executed the foregoing instrument; and
that he signed his name thereto by order of the Board of Directors of such
association.
________________________
Notary
Public
[Notarial
Seal]
My
commission expires __________.
STATE
OF
[__________________] )
) ss:
COUNTY
OF
[___________
)
)
On
the
___ day of [month], [year], before me, a notary public in and for the State
of
______________, personally appeared ____________, known to me who, being by
me
duly sworn, did depose and say that he is an ______________ of ____________,
a
____________, one of the parties that executed the foregoing instrument; and
that he signed his name thereto by order of the Board of Directors of such
association.
________________________
Notary
Public
[Notarial
Seal]
My
commission expires __________.
STATE
OF
[__________________] )
) ss:
COUNTY
OF
[___________
)
)
________________________
On
the
___ day of [month], [year], before me, a notary public in and for the State
of
______________, personally appeared ____________, known to me who, being by
me
duly sworn, did depose and say that he is an ______________ of ____________,
a
____________, 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
Notary Public
[Notarial
Seal]
My
commission expires __________.
EXHIBIT
A-1A1
[FORM
OF
FACE OF CLASS 1-A-1 CERTIFICATE]
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
1-A-1
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
REDUCTIONS
OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THE AMOUNT SET FORTH BELOW.
X-0X0-0
XXXX
XX
XXXXXXX FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
1-A-1
evidencing
an interest in a Trust consisting of four loan groups of fully-amortizing
[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: [__________]
First
Distribution
Date: [__________]
Initial
Certificate
Balance
of this
Certificate:
$
Initial
Class Certificate
Balance
of this
Class: $[__________]
Pass-Through
Rate:
Variable Rate
CUSIP
No.: [__________]
ISIN
No.:
[__________]
THIS
CERTIFIES THAT __________ is the registered owner of the Percentage Interest
evidenced by this Certificate in certain monthly distributions with respect
to a
Trust consisting of the Mortgage Loans deposited by Banc of America Funding
Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated [__________] (the “Pooling and Servicing
Agreement”), among the Depositor, [__________], as master servicer (the “Master
Servicer”), and securities administrator (the “Securities Administrator”), and
[__________], as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal
in respect of this Certificate is distributable monthly as set forth in the
Pooling and Servicing Agreement. Accordingly, the Certificate Balance
of this Certificate at any time may be less than the Certificate Balance as
set
forth herein. This Certificate does not evidence an obligation of, or
an interest in, and is not guaranteed by the Depositor, the Master Servicer,
the
Securities Administrator or the Trustee or any of their respective
affiliates. Neither this
A-1A1-2
Certificate
nor the Mortgage Loans are guaranteed or insured by any governmental agency
or
instrumentality.
Interest
will accrue on these Certificates at a per annum rate as provided in the Pooling
and Servicing Agreement.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
*
*
*
A-1A1-3
EXHIBIT
A-1A2
[FORM
OF
FACE OF CLASS 1-A-2 CERTIFICATE]
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
1-A-2
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
REDUCTIONS
OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THE AMOUNT SET FORTH BELOW.
X-0X0-0
XXXX
XX
XXXXXXX FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
1-A-2
evidencing
an interest in a Trust consisting of four loan groups of fully-amortizing
[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:
|
[__________]
|
|
First
Distribution Date:
|
[__________]
|
|
Initial
Certificate
|
|
|
Balance
of this
|
|
|
Certificate:
|
$
|
|
Initial
Class Certificate
|
|
|
Balance
of this Class:
|
$[__________]
|
|
Pass-Through
Rate:
|
Variable
Rate
|
|
CUSIP
No.:
|
[__________]
|
|
ISIN
No.:
|
[__________]
|
THIS
CERTIFIES THAT __________ is the registered owner of the Percentage Interest
evidenced by this Certificate in certain monthly distributions with respect
to a
Trust consisting of the Mortgage Loans deposited by Banc of America Funding
Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated [__________] (the “Pooling and Servicing
Agreement”), among the Depositor, [__________], as master servicer (the “Master
Servicer”), and securities administrator (the “Securities Administrator”), and
[__________], as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal
in respect of this Certificate is distributable monthly as set forth in the
Pooling and Servicing Agreement. Accordingly, the Certificate Balance
of this Certificate at any time may be less than the Certificate Balance as
set
forth herein. This Certificate does not evidence an obligation of, or
an interest in, and is not guaranteed by the Depositor, the Master Servicer,
the
Securities Administrator or the Trustee or any of their respective
affiliates. Neither this
A-1A2-2
Certificate
nor the Mortgage Loans are guaranteed or insured by any governmental agency
or
instrumentality.
Interest
will accrue on these Certificates at a per annum rate as provided in the Pooling
and Servicing Agreement.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
*
*
*
A-1A2-3
EXHIBIT
A-2AR
[FORM
OF
FACE OF CLASS 2-A-R CERTIFICATE]
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
2-A-R
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN MULTIPLE “REAL ESTATE MORTGAGE INVESTMENT CONDUITS,” AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF
1986, AS AMENDED (THE “CODE”).
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 2-A-R CERTIFICATE IN VIOLATION OF SUCH RESTRICTIONS SHALL BE
ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN THE PURPORTED
TRANSFEREE.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE TO A PLAN (AS DEFINED IN THE POOLING
AND SERVICING AGREEMENT)
A-2AR-1
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
2-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 of four loan
groups of fully-amortizing [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:
|
[__________]
|
|
First
Distribution Date:
|
[__________]
|
|
Initial
Certificate
|
|
|
Balance
of this
|
|
|
Certificate:
|
$[__________]
|
|
Initial
Class Certificate
|
|
|
Balance
of this Class:
|
$[__________]
|
|
Pass-Through
Rate:
|
Variable
|
|
CUSIP
No.:
|
[__________]
|
|
ISIN
No.:
|
[__________]
|
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 [__________] (the “Pooling and Servicing
Agreement”), among the Depositor, [__________], as master servicer (the “Master
Servicer”) and securities administrator (the “Securities Administrator”), and
[__________], as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal
in respect of this Certificate is distributable monthly as set forth in the
Pooling and Servicing Agreement. Accordingly, the Certificate Balance
of this Certificate at any time may be less than the Certificate Balance as
set
forth herein. This Certificate does not evidence an obligation of, or
an interest in, and is not guaranteed by the Depositor, the Master Servicer,
the
Securities Administrator or the Trustee or any of their respective
affiliates. Neither this
A-2AR-2
Certificate
nor the Mortgage Loans are guaranteed or insured by any governmental agency
or
instrumentality.
Any
distribution of the proceeds of any remaining assets of the applicable
subaccounts of the Certificate Account will be made only upon presentment and
surrender of this Class 2-A-R Certificate at the
Corporate Trust Office.
Each
Person who has or who acquires this Class 2-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 2-A-R
Certificate are expressly subject to the following provisions: (i) each Person
holding or acquiring this Class 2-A-R Certificate shall be a Permitted
Transferee and shall promptly notify the Securities Administrator of any change
or impending change in its status as a Permitted Transferee; (ii) no Person
shall acquire an ownership interest in this Class 2-A-R Certificate unless
such
ownership interest is a pro
rata undivided interest; (iii) in connection with any proposed transfer
of this Class 2-A-R Certificate, the Securities Administrator shall require
delivery to it, in form and substance satisfactory to it, of an affidavit in
the
form of Exhibit
I to the Pooling and Servicing Agreement and a certificate substantially
in the form set forth in Exhibit T to the
Pooling and Servicing Agreement; (iv) notwithstanding the delivery of an
affidavit by a proposed transferee under clause (iii) above, if a Responsible
Officer of the Securities Administrator has actual knowledge that the proposed
transferee is not a Permitted Transferee, no transfer of any Ownership Interest
in this Class 2-A-R Certificate to such proposed transferee shall be effected;
(v) this Class 2-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 2-A-R
Certificate in connection with the conduct of a trade or business within the
United States and furnishes the transferor and the Securities Administrator
with
an effective Internal Revenue Service Form W-8ECI (or any successor thereto)
or
(B) the transferee delivers to both the transferor and the Securities
Administrator an Opinion of Counsel from a nationally-recognized tax counsel
to
the effect that such transfer is in accordance with the requirements of the
Code
and the regulations promulgated thereunder and that such transfer of this Class
2-A-R Certificate will not be disregarded for federal income tax purposes;
(vi)
any attempted or purported transfer of this Class 2-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 2-A-R Certificate in violation
of
such restrictions, then the Securities Administrator, based on information
provided to the Securities Administrator by the Master Servicer, will provide
to
the Internal Revenue Service, and to the Persons specified in Section 860E(e)(3)
and (6) of the Code, information needed to compute the tax imposed under Section
860E(e) of the Code on transfers of residual interests to disqualified
organizations.
This
Class 2-A-R Certificate may
not be purchased by or transferred to any Plan (as defined in the Pooling and
Servicing Agreement).
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
A-2AR-3
This
Certificate shall not be entitled to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
*
*
*
A-2AR-4
EXHIBIT
A-2A1
[FORM
OF
FACE OF CLASS 2-A-1 CERTIFICATE]
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
2-A-1
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
REDUCTIONS
OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THE AMOUNT SET FORTH BELOW.
X-0X0-0
XXXX
XX
XXXXXXX FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
2-A-1
evidencing
an interest in a Trust consisting of four loan groups of fully-amortizing
[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:
|
[__________]
|
|
First
Distribution Date:
|
[__________]
|
|
Initial
Certificate
|
|
|
Balance
of this
|
|
|
Certificate:
|
$
|
|
Initial
Class Certificate
|
|
|
Balance
of this Class:
|
$[__________]
|
|
Pass-Through
Rate:
|
Variable
|
|
CUSIP
No.:
|
[__________]
|
|
ISIN
No.:
|
[__________]
|
THIS
CERTIFIES THAT __________ is the registered owner of the Percentage Interest
evidenced by this Certificate in certain monthly distributions with respect
to a
Trust consisting of the Mortgage Loans deposited by Banc of America Funding
Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated [__________] (the “Pooling and Servicing
Agreement”), among the Depositor, [__________], as master servicer (the “Master
Servicer”), and securities administrator (the “Securities Administrator”), and
[__________], as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal
in respect of this Certificate is distributable monthly as set forth in the
Pooling and Servicing Agreement. Accordingly, the Certificate Balance
of this Certificate at any time may be less than the Certificate Balance as
set
forth herein. This Certificate does not evidence an obligation of, or
an interest in, and is not guaranteed by the Depositor, the Master Servicer,
the
Securities Administrator or the Trustee or any of their respective
affiliates. Neither this
A-2A1-2
Certificate
nor the Mortgage Loans are guaranteed or insured by any governmental agency
or
instrumentality.
Interest
will accrue on these Certificates at a per annum rate as provided in the Pooling
and Servicing Agreement.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
*
*
*
A-2A1-3
EXHIBIT
A-2A2
[FORM
OF
FACE OF CLASS 2-A-2 CERTIFICATE]
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
2-A-2
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
REDUCTIONS
OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THE AMOUNT SET FORTH BELOW.
X-0X0-0
XXXX
XX
XXXXXXX FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
2-A-2
evidencing
an interest in a Trust consisting of four loan groups of fully-amortizing
[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:
|
[__________]
|
|
First
Distribution Date:
|
[__________]
|
|
Initial
Certificate
|
|
|
Balance
of this
|
|
|
Certificate:
|
$
|
|
Initial
Class Certificate
|
|
|
Balance
of this Class:
|
$[__________]
|
|
Pass-Through
Rate:
|
Variable
|
|
CUSIP
No.:
|
[__________]
|
|
ISIN
No.:
|
[__________]
|
THIS
CERTIFIES THAT __________ is the registered owner of the Percentage Interest
evidenced by this Certificate in certain monthly distributions with respect
to a
Trust consisting of the Mortgage Loans deposited by Banc of America Funding
Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated [__________] (the “Pooling and Servicing
Agreement”), among the Depositor, [__________], as master servicer (the “Master
Servicer”), and securities administrator (the “Securities Administrator”), and
[__________], as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal
in respect of this Certificate is distributable monthly as set forth in the
Pooling and Servicing Agreement. Accordingly, the Certificate Balance
of this Certificate at any time may be less than the Certificate Balance as
set
forth herein. This Certificate does not evidence an obligation of, or
an interest in, and is not guaranteed by the Depositor, the Master Servicer,
the
Securities Administrator or the Trustee or any of their respective
affiliates. Neither this
A-2A2-2
Certificate
nor the Mortgage Loans are guaranteed or insured by any governmental agency
or
instrumentality.
Interest
will accrue on these Certificates at a per annum rate as provided in the Pooling
and Servicing Agreement.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
*
*
*
A-2A2-3
EXHIBIT
A-3A1
[FORM
OF
FACE OF CLASS 3-A-1 CERTIFICATE]
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
3-A-1
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
REDUCTIONS
OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THE AMOUNT SET FORTH BELOW.
X-0X0-0
XXXX
XX
XXXXXXX FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
3-A-1
evidencing
an interest in a Trust consisting of four loan groups of fully-amortizing
[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:
|
[__________]
|
|
First
Distribution Date:
|
[__________]
|
|
Initial
Certificate
|
|
|
Balance
of this
|
|
|
Certificate:
|
$
|
|
Initial
Class Certificate
|
|
|
Balance
of this Class:
|
$[__________]
|
|
Pass-Through
Rate:
|
Variable
|
|
CUSIP
No.:
|
[__________]
|
|
ISIN
No.:
|
[__________]
|
THIS
CERTIFIES THAT __________ is the registered owner of the Percentage Interest
evidenced by this Certificate in certain monthly distributions with respect
to a
Trust consisting of the Mortgage Loans deposited by Banc of America Funding
Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated [__________] (the “Pooling and Servicing
Agreement”), among the Depositor, [__________], as master servicer (the “Master
Servicer”), and securities administrator (the “Securities Administrator”), and
[__________], as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal
in respect of this Certificate is distributable monthly as set forth in the
Pooling and Servicing Agreement. Accordingly, the Certificate Balance
of this Certificate at any time may be less than the Certificate Balance as
set
forth herein. This Certificate does not evidence an obligation of, or
an interest in, and is not guaranteed by the Depositor, the Master Servicer,
the
Securities Administrator or the Trustee or any of their respective
affiliates. Neither this
A-3A1-2
Certificate
nor the Mortgage Loans are guaranteed or insured by any governmental agency
or
instrumentality.
Interest
will accrue on these Certificates at a per annum rate as provided in the Pooling
and Servicing Agreement.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
*
*
*
A-3A1-3
EXHIBIT
A-3A2
[FORM
OF
FACE OF CLASS 3-A-2 CERTIFICATE]
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
3-A-2
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
REDUCTIONS
OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THE AMOUNT SET FORTH BELOW.
X-0X0-0
XXXX
XX
XXXXXXX FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
3-A-2
evidencing
an interest in a Trust consisting of four loan groups of fully-amortizing
[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:
|
[__________]
|
|
First
Distribution Date:
|
[__________]
|
|
Initial
Certificate
|
|
|
Balance
of this
|
|
|
Certificate:
|
$
|
|
Initial
Class Certificate
|
|
|
Balance
of this Class:
|
$[__________]
|
|
Pass-Through
Rate:
|
Variable
|
|
CUSIP
No.:
|
[__________]
|
|
ISIN
No.:
|
[__________]
|
THIS
CERTIFIES THAT __________ is the registered owner of the Percentage Interest
evidenced by this Certificate in certain monthly distributions with respect
to a
Trust consisting of the Mortgage Loans deposited by Banc of America Funding
Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated [__________] (the “Pooling and Servicing
Agreement”), among the Depositor, [__________], as master servicer (the “Master
Servicer”), and securities administrator (the “Securities Administrator”), and
[__________], as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal
in respect of this Certificate is distributable monthly as set forth in the
Pooling and Servicing Agreement. Accordingly, the Certificate Balance
of this Certificate at any time may be less than the Certificate Balance as
set
forth herein. This Certificate does not evidence an obligation of, or
an interest in, and is not guaranteed by the Depositor, the Master
Servicer
A-3A2-2
and
Securities Administrator or the Trustee or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or
instrumentality.
Interest
will accrue on these Certificates at a per annum rate as provided in the Pooling
and Servicing Agreement.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
*
*
*
A-3A2-3
EXHIBIT
A-3A3
[FORM
OF
FACE OF CLASS 3-A-3 CERTIFICATE]
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
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, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
REDUCTIONS
OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THE AMOUNT SET FORTH BELOW.
X-0X0-0
XXXX
XX
XXXXXXX FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
3-A-3
evidencing
an interest in a Trust consisting of four loan groups of fully-amortizing
[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:
|
[__________]
|
|
First
Distribution Date:
|
[__________]
|
|
Initial
Certificate
|
|
|
Balance
of this
|
|
|
Certificate:
|
$
|
|
Initial
Class Certificate
|
|
|
Balance
of this Class:
|
$[__________]
|
|
Pass-Through
Rate:
|
Variable
|
|
CUSIP
No.:
|
[__________]
|
|
ISIN
No.:
|
[__________]
|
THIS
CERTIFIES THAT __________ is the registered owner of the Percentage Interest
evidenced by this Certificate in certain monthly distributions with respect
to a
Trust consisting of the Mortgage Loans deposited by Banc of America Funding
Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated [__________] (the “Pooling and Servicing
Agreement”), among the Depositor, [__________], as master servicer (the “Master
Servicer”), and securities administrator (the “Securities Administrator”), and
[__________], as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal
in respect of this Certificate is distributable monthly as set forth in the
Pooling and Servicing Agreement. Accordingly, the Certificate Balance
of this Certificate at any time may be less than the Certificate Balance as
set
forth herein. This Certificate does not evidence an obligation of, or
an interest in, and is not guaranteed by the Depositor, the Master
Servicer
A-3A3-2
and
Securities Administrator or the Trustee or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or
instrumentality.
Interest
will accrue on these Certificates at a per annum rate as provided in the Pooling
and Servicing Agreement.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
*
*
*
A-3A3-3
EXHIBIT
A-3A4
[FORM
OF
FACE OF CLASS 3-A-4 CERTIFICATE]
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
3-A-4
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
REDUCTIONS
OF THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE MADE MONTHLY AS DESCRIBED
IN
THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THE AMOUNT
SET FORTH BELOW.
X-0X0-0
XXXX
XX
XXXXXXX FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
3-A-4
evidencing
an interest in a Trust consisting of four loan groups of fully-amortizing
[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:
|
[__________]
|
|
First
Distribution Date:
|
[__________]
|
|
Initial
Notional
|
|
|
Amount
of this
|
|
|
Certificate:
|
$
|
|
Initial
Notional
|
|
|
Amount
of this Class:
|
$[__________]
|
|
Pass-Through
Rate:
|
[_____]%
|
|
CUSIP
No.:
|
[__________]
|
|
ISIN
No.:
|
[__________]
|
THIS
CERTIFIES THAT __________ is the registered owner of the Percentage Interest
evidenced by this Certificate in certain monthly distributions with respect
to a
Trust consisting of the Mortgage Loans deposited by Banc of America Funding
Corporation Banc of America Funding Corporation (the
“Depositor”). The Trust was created pursuant to a Pooling and
Servicing Agreement, dated [__________] (the “Pooling and Servicing Agreement”),
among the Depositor, [__________], as master servicer (the “Master Servicer”),
and securities administrator (the “Securities Administrator”), and [__________],
as trustee (the “Trustee”). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement. This Certificate is issued under and is subject
to the terms, provisions and conditions of the Pooling and Servicing Agreement,
to which Pooling and Servicing Agreement the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is
bound.
This
Class 3-A-4 Certificate is not entitled to any distributions with respect to
principal. After the Distribution Date in [month] [year], no interest
will accrue on the Class 3-A-4 Certificate.
A-3A4-2
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
*
*
*
A-3A4-3
EXHIBIT
A-4A1
[FORM
OF
FACE OF CLASS 4-A-1 CERTIFICATE]
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
4-A-1
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
REDUCTIONS
OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THE AMOUNT SET FORTH BELOW.
X-0X0-0
XXXX
XX
XXXXXXX FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
4-A-1
evidencing
an interest in a Trust consisting of four loan groups of fully-amortizing
[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:
|
[__________]
|
|
First
Distribution Date:
|
[__________]
|
|
Initial
Certificate
|
|
|
Balance
of this
|
|
|
Certificate:
|
$
|
|
Initial
Class Certificate
|
|
|
Balance
of this Class:
|
$[__________]
|
|
Pass-Through
Rate:
|
Variable
|
|
CUSIP
No.:
|
[__________]
|
|
ISIN
No.:
|
[__________]
|
THIS
CERTIFIES THAT __________ is the registered owner of the Percentage Interest
evidenced by this Certificate in certain monthly distributions with respect
to a
Trust consisting of the Mortgage Loans deposited by Banc of America Funding
Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated [__________] (the “Pooling and Servicing
Agreement”), among the Depositor, [__________], as master servicer (the “Master
Servicer”), and securities administrator (the “Securities Administrator”), and
[__________], as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal
in respect of this Certificate is distributable monthly as set forth in the
Pooling and Servicing Agreement. Accordingly, the Certificate Balance
of this Certificate at any time may be less than the Certificate Balance as
set
forth herein. This Certificate does not evidence an obligation of, or
an interest in, and is not guaranteed by the Depositor, the Master Servicer,
the
Securities Administrator or the Trustee or any of their respective
affiliates. Neither this
A-4A1-2
Certificate
nor the Mortgage Loans are guaranteed or insured by any governmental agency
or
instrumentality.
Interest
will accrue on these Certificates at a per annum rate as provided in the Pooling
and Servicing Agreement.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
*
*
*
A-4A1-3
EXHIBIT
A-4A2
[FORM
OF
FACE OF CLASS 4-A-2 CERTIFICATE]
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
4-A-2
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
REDUCTIONS
OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THE AMOUNT SET FORTH BELOW.
X-0X0-0
XXXX
XX
XXXXXXX FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
4-A-2
evidencing
an interest in a Trust consisting of four loan groups of fully-amortizing
[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:
|
[__________]
|
|
First
Distribution Date:
|
[__________]
|
|
Initial
Certificate
|
|
|
Balance
of this
|
|
|
Certificate:
|
$
|
|
Initial
Class Certificate
|
|
|
Balance
of this Class:
|
$[__________]
|
|
Pass-Through
Rate:
|
Variable
|
|
CUSIP
No.:
|
[__________]
|
|
ISIN
No.:
|
[__________]
|
THIS
CERTIFIES THAT __________ is the registered owner of the Percentage Interest
evidenced by this Certificate in certain monthly distributions with respect
to a
Trust consisting of the Mortgage Loans deposited by Banc of America Funding
Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated [__________] (the “Pooling and Servicing
Agreement”), among the Depositor, [__________], as master servicer (the “Master
Servicer”), and securities administrator (the “Securities Administrator”), and
[__________], as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal
in respect of this Certificate is distributable monthly as set forth in the
Pooling and Servicing Agreement. Accordingly, the Certificate Balance
of this Certificate at any time may be less than the Certificate Balance as
set
forth herein. This Certificate does not evidence an obligation of, or
an interest in, and is not guaranteed by the Depositor, the Master
Servicer
A-4A2-2
and
Securities Administrator or the Trustee or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or
instrumentality.
Interest
will accrue on these Certificates at a per annum rate as provided in the Pooling
and Servicing Agreement.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
*
*
*
A-4A2-3
EXHIBIT
A-4A3
[FORM
OF
FACE OF CLASS 4-A-3 CERTIFICATE]
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
4-A-3
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
REDUCTIONS
OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THE AMOUNT SET FORTH BELOW.
X-0X0-0
XXXX
XX
XXXXXXX FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
4-A-3
evidencing
an interest in a Trust consisting of four loan groups of fully-amortizing
[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:
|
[__________]
|
|
First
Distribution Date:
|
[__________]
|
|
Initial
Certificate
|
|
|
Balance
of this
|
|
|
Certificate:
|
$
|
|
Initial
Class Certificate
|
|
|
Balance
of this Class:
|
$[__________]
|
|
Pass-Through
Rate:
|
Variable
|
|
CUSIP
No.:
|
[__________]
|
|
ISIN
No.:
|
[__________]
|
THIS
CERTIFIES THAT __________ is the registered owner of the Percentage Interest
evidenced by this Certificate in certain monthly distributions with respect
to a
Trust consisting of the Mortgage Loans deposited by Banc of America Funding
Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated [__________] (the “Pooling and Servicing
Agreement”), among the Depositor, [__________], as master servicer (the “Master
Servicer”), and securities administrator (the “Securities Administrator”), and
[__________], as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal
in respect of this Certificate is distributable monthly as set forth in the
Pooling and Servicing Agreement. Accordingly, the Certificate Balance
of this Certificate at any time may be less than the Certificate Balance as
set
forth herein. This Certificate does not evidence an obligation of, or
an interest in, and is not guaranteed by the Depositor, the Master
Servicer
A-4A3-2
and
Securities Administrator or the Trustee or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or
instrumentality.
Interest
will accrue on these Certificates at a per annum rate as provided in the Pooling
and Servicing Agreement.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
*
*
*
A-4A3-3
EXHIBIT
B-JB1
[FORM
OF
FACE OF CLASS X-X-1 CERTIFICATE]
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
X-X-1
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
REDUCTIONS
OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THE AMOUNT SET FORTH BELOW.
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
IN
THE
EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS EQUIVALENT,
NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE
POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-JB1-1
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
X-X-1
evidencing
an interest in a Trust consisting of four loan groups of fully-amortizing
[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:
|
[__________]
|
|
First
Distribution Date:
|
[__________]
|
|
Initial
Certificate
|
|
|
Balance
of this
|
|
|
Certificate:
|
$
|
|
Initial
Class Certificate
|
|
|
Balance
of this Class:
|
$[__________]
|
|
Pass-Through
Rate:
|
Variable
|
|
CUSIP
No.:
|
[__________]
|
|
ISIN
No.:
|
[__________]
|
THIS
CERTIFIES THAT __________ is the registered owner of the Percentage Interest
evidenced by this Certificate in certain monthly distributions with respect
to a
Trust consisting of the Mortgage Loans deposited by Banc of America Funding
Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated [__________] (the “Pooling and Servicing
Agreement”), among the Depositor, [__________], as master servicer (the “Master
Servicer”), and securities administrator (the “Securities Administrator”), and
[__________], as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal
in respect of this Certificate is distributable monthly as set forth in the
Pooling and Servicing Agreement. Accordingly, the Certificate Balance
of this Certificate at any time may be less than the Certificate Balance as
set
forth herein. This Certificate does not evidence an obligation of, or
an interest in, and is not guaranteed by the Depositor, the Master
Servicer
B-JB1-2
and
Securities Administrator or the Trustee or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or
instrumentality.
Interest
will accrue on these Certificates at a per annum rate as provided in the Pooling
and Servicing Agreement.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
*
*
*
B-JB1-3
EXHIBIT
B-JB2
[FORM
OF
FACE OF CLASS X-X-2 CERTIFICATE]
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
X-X-2
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
REDUCTIONS
OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THE AMOUNT SET FORTH BELOW.
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
IN
THE
EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS EQUIVALENT,
NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE
POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-JB2-1
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
X-X-2
evidencing
an interest in a Trust consisting of four loan groups of fully-amortizing
[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:
|
[__________]
|
|
First
Distribution Date:
|
[__________]
|
|
Initial
Certificate
|
|
|
Balance
of this
|
|
|
Certificate:
|
$
|
|
Initial
Class Certificate
|
|
|
Balance
of this Class:
|
$[__________]
|
|
Pass-Through
Rate:
|
Variable
|
|
CUSIP
No.:
|
[__________]
|
|
ISIN
No.:
|
[__________]
|
THIS
CERTIFIES THAT __________ is the registered owner of the Percentage Interest
evidenced by this Certificate in certain monthly distributions with respect
to a
Trust consisting of the Mortgage Loans deposited by Banc of America Funding
Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated [__________] (the “Pooling and Servicing
Agreement”), among the Depositor, [__________], as master servicer (the “Master
Servicer”), and securities administrator (the “Securities Administrator”), and
[__________], as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal
in respect of this Certificate is distributable monthly as set forth in the
Pooling and Servicing Agreement. Accordingly, the Certificate Balance
of this Certificate at any time may be less than the Certificate Balance as
set
forth herein. This Certificate does not evidence an obligation of, or
an interest in, and is not guaranteed by the Depositor, the Master
Servicer
B-JB2-2
and
Securities Administrator or the Trustee or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or
instrumentality.
Interest
will accrue on these Certificates at a per annum rate as provided in the Pooling
and Servicing Agreement.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
*
*
*
B-JB2-3
EXHIBIT
B- JB3
[FORM
OF
FACE OF CLASS X-X-3 CERTIFICATE]
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
X-X-3
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
REDUCTIONS
OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THE AMOUNT SET FORTH BELOW.
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
IN
THE
EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS EQUIVALENT,
NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE
POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-JB3-1
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
X-X-3
evidencing
an interest in a Trust consisting of four loan groups of fully-amortizing
[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:
|
[__________]
|
|
First
Distribution Date:
|
[__________]
|
|
Initial
Certificate
|
|
|
Balance
of this
|
|
|
Certificate:
|
$
|
|
Initial
Class Certificate
|
|
|
Balance
of this Class:
|
$[__________]
|
|
Pass-Through
Rate:
|
Variable
|
|
CUSIP
No.:
|
[__________]
|
|
ISIN
No.:
|
[__________]
|
THIS
CERTIFIES THAT __________ is the registered owner of the Percentage Interest
evidenced by this Certificate in certain monthly distributions with respect
to a
Trust consisting of the Mortgage Loans deposited by Banc of America Funding
Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated [__________] (the “Pooling and Servicing
Agreement”), among the Depositor, [__________], as master servicer (the “Master
Servicer”), and securities administrator (the “Securities Administrator”), and
[__________], as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal
in respect of this Certificate is distributable monthly as set forth in the
Pooling and Servicing Agreement. Accordingly, the Certificate Balance
of this Certificate at any time may be less than the Certificate Balance as
set
forth herein. This Certificate does not evidence an obligation of, or
an interest in, and is not guaranteed by the Depositor, the Master Servicer
and
Securities Administrator or the Trustee or any of their respective
affiliates. Neither this
B-JB3-2
Certificate
nor the Mortgage Loans are guaranteed or insured by any governmental agency
or
instrumentality.
Interest
will accrue on these Certificates at a per annum rate as provided in the Pooling
and Servicing Agreement.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
*
*
*
B-JB3-3
EXHIBIT
B-JB4
[FORM
OF
FACE OF CLASS X-X-4 CERTIFICATE]
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
X-X-4
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
REDUCTIONS
OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THE AMOUNT SET FORTH BELOW.
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “1933 ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING
AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING
AND SERVICING AGREEMENT REFERENCED HEREIN.
B-JB4-1
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
X-X-4
evidencing
an interest in a Trust consisting of four loan groups of fully-amortizing
[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:
|
[__________]
|
|
First
Distribution Date:
|
[__________]
|
|
Initial
Certificate
|
|
|
Balance
of this
|
|
|
Certificate:
|
$
|
|
Initial
Class Certificate
|
|
|
Balance
of this Class:
|
$[__________]
|
|
Pass-Through
Rate:
|
Variable
|
|
CUSIP
No.:
|
[__________]
|
|
ISIN
No.:
|
[__________]
|
THIS
CERTIFIES THAT __________ is the registered owner of the Percentage Interest
evidenced by this Certificate in certain monthly distributions with respect
to a
Trust consisting of the Mortgage Loans deposited by Banc of America Funding
Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated [__________] (the “Pooling and Servicing
Agreement”), among the Depositor, [__________], as master servicer (the “Master
Servicer”), and securities administrator (the “Securities Administrator”), and
[__________], as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal
in respect of this Certificate is distributable monthly as set forth in the
Pooling and Servicing Agreement. Accordingly, the Certificate Balance
of this Certificate at any time may be less than the Certificate Balance as
set
forth herein. This Certificate does not evidence an obligation of, or
an interest in, and is not guaranteed by the Depositor, the Master
Servicer
B-JB4-2
and
Securities Administrator or the Trustee or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or
instrumentality.
Interest
will accrue on these Certificates at a per annum rate as provided in the Pooling
and Servicing Agreement.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
exempt from the registration requirements of the Securities Act of 1933, as
amended (the “1933 Act”), and any applicable state securities laws or is made in
accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form
and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such
laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a
certificate from such Certificateholder’s prospective transferee substantially
in the form attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit
G-2B,
which certificates shall not be an expense of the Securities Administrator
or
the Depositor; provided that the foregoing requirements under clauses (i) and
(ii) shall not apply to a transfer of a Private Certificate between or among
the
Depositor, the Sponsor, their affiliates or both. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Securities Administrator and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
*
*
*
B-JB4-3
EXHIBIT
B-JB5
[FORM
OF
FACE OF CLASS X-X-5 CERTIFICATE]
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
X-X-5
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
REDUCTIONS
OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THE AMOUNT SET FORTH BELOW.
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “1933 ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING
AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING
AND SERVICING AGREEMENT REFERENCED HEREIN.
B-JB5-1
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
X-X-5
evidencing
an interest in a Trust consisting of four loan groups of fully-amortizing
[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:
|
[__________]
|
|
First
Distribution Date:
|
[__________]
|
|
Initial
Certificate
|
|
|
Balance
of this
|
|
|
Certificate:
|
$
|
|
Initial
Class Certificate
|
|
|
Balance
of this Class:
|
$[__________]
|
|
Pass-Through
Rate:
|
Variable
|
|
CUSIP
No.:
|
[__________]
|
|
ISIN
No.:
|
[__________]
|
THIS
CERTIFIES THAT __________ is the registered owner of the Percentage Interest
evidenced by this Certificate in certain monthly distributions with respect
to a
Trust consisting of the Mortgage Loans deposited by Banc of America Funding
Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated [__________] (the “Pooling and Servicing
Agreement”), among the Depositor, [__________], as master servicer (the “Master
Servicer”), and securities administrator (the “Securities Administrator”), and
[__________], as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal
in respect of this Certificate is distributable monthly as set forth in the
Pooling and Servicing Agreement. Accordingly, the Certificate Balance
of this Certificate at any time may be less than the Certificate Balance as
set
forth herein. This Certificate does not evidence an obligation of, or
an interest in, and is not guaranteed by the Depositor, the Master
Servicer,
B-JB5-2
the
Securities Administrator or the Trustee or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or
instrumentality.
Interest
will accrue on these Certificates at a per annum rate as provided in the Pooling
and Servicing Agreement.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
exempt from the registration requirements of the Securities Act of 1933, as
amended (the “1933 Act”), and any applicable state securities laws or is made in
accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form
and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such
laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a
certificate from such Certificateholder’s prospective transferee substantially
in the form attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit
G-2B,
which certificates shall not be an expense of the Securities Administrator
or
the Depositor; provided that the foregoing requirements under clauses (i) and
(ii) shall not apply to a transfer of a Private Certificate between or among
the
Depositor, the Sponsor, their affiliates or both. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Securities Administrator and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
*
*
*
B-JB5-3
EXHIBIT
B-JB6
[FORM
OF
FACE OF CLASS X-X-6 CERTIFICATE]
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
X-X-6
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
REDUCTIONS
OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THE AMOUNT SET FORTH BELOW.
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “1933 ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING
AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING
AND SERVICING AGREEMENT REFERENCED HEREIN.
B-JB6-1
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
X-X-6
evidencing
an interest in a Trust consisting of four loan groups of fully-amortizing
[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:
|
[__________]
|
|
First
Distribution Date:
|
[__________]
|
|
Initial
Certificate
|
|
|
Balance
of this
|
|
|
Certificate:
|
$
|
|
Initial
Class Certificate
|
|
|
Balance
of this Class:
|
$[__________]
|
|
Pass-Through
Rate:
|
Variable
|
|
CUSIP
No.:
|
[__________]
|
|
ISIN
No.:
|
[__________]
|
THIS
CERTIFIES THAT __________ is the registered owner of the Percentage Interest
evidenced by this Certificate in certain monthly distributions with respect
to a
Trust consisting of the Mortgage Loans deposited by Banc of America Funding
Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated [__________] (the “Pooling and Servicing
Agreement”), among the Depositor, [__________], as master servicer (the “Master
Servicer”), and securities administrator (the “Securities Administrator”), and
[__________], as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal
in respect of this Certificate is distributable monthly as set forth in the
Pooling and Servicing Agreement. Accordingly, the Certificate Balance
of this Certificate at any time may be less than the Certificate Balance as
set
forth herein. This Certificate does not evidence an obligation of, or
an interest in, and is not guaranteed by the Depositor, the Master
Servicer,
B-JB6-2
the
Securities Administrator or the Trustee or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or
instrumentality.
Interest
will accrue on these Certificates at a per annum rate as provided in the Pooling
and Servicing Agreement.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
exempt from the registration requirements of the Securities Act of 1933, as
amended (the “1933 Act”), and any applicable state securities laws or is made in
accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form
and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such
laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a
certificate from such Certificateholder’s prospective transferee substantially
in the form attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit
G-2B,
which certificates shall not be an expense of the Securities Administrator
or
the Depositor; provided that the foregoing requirements under clauses (i) and
(ii) shall not apply to a transfer of a Private Certificate between or among
the
Depositor, the Sponsor, their affiliates or both. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Securities Administrator and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
*
*
*
B-JB6-3
EXHIBIT
B-XB1
[FORM
OF
FACE OF CLASS X-B-1 CERTIFICATE]
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
X-B-1
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
REDUCTIONS
OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THE AMOUNT SET FORTH BELOW.
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
IN
THE
EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS EQUIVALENT,
NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE
POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-XB1-1
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
X-B-1
evidencing
an interest in a Trust consisting of four loan groups of fully-amortizing
[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:
|
[__________]
|
|
First
Distribution Date:
|
[__________]
|
|
Initial
Certificate
|
|
|
Balance
of this
|
|
|
Certificate:
|
$
|
|
Initial
Class Certificate
|
|
|
Balance
of this Class:
|
$[__________]
|
|
Pass-Through
Rate:
|
Variable
|
|
CUSIP
No.:
|
[__________]
|
|
ISIN
No.:
|
[__________]
|
THIS
CERTIFIES THAT __________ is the registered owner of the Percentage Interest
evidenced by this Certificate in certain monthly distributions with respect
to a
Trust consisting of the Mortgage Loans deposited by Banc of America Funding
Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated [__________] (the “Pooling and Servicing
Agreement”), among the Depositor, [__________], as master servicer (the “Master
Servicer”), and securities administrator (the “Securities Administrator”), and
[__________], as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal
in respect of this Certificate is distributable monthly as set forth in the
Pooling and Servicing Agreement. Accordingly, the Certificate Balance
of this Certificate at any time may be less than the Certificate Balance as
set
forth herein. This Certificate does not evidence an obligation of, or
an interest in, and is not guaranteed by the Depositor, the Master
Servicer
B-XB1-2
and
Securities Administrator or the Trustee or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or
instrumentality.
Interest
will accrue on these Certificates at a per annum rate as provided in the Pooling
and Servicing Agreement.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
*
*
*
B-XB1-3
EXHIBIT
B-XB2
[FORM
OF
FACE OF CLASS X-B-2 CERTIFICATE]
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
X-B-2
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
REDUCTIONS
OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THE AMOUNT SET FORTH BELOW.
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
IN
THE
EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS EQUIVALENT,
NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE
POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-XB2-1
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
X-B-2
evidencing
an interest in a Trust consisting of four loan groups of fully-amortizing
[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:
|
[__________]
|
|
First
Distribution Date:
|
[__________]
|
|
Initial
Certificate
|
|
|
Balance
of this
|
|
|
Certificate:
|
$
|
|
Initial
Class Certificate
|
|
|
Balance
of this Class:
|
$[__________]
|
|
Pass-Through
Rate:
|
Variable
|
|
CUSIP
No.:
|
[__________]
|
|
ISIN
No.:
|
[__________]
|
THIS
CERTIFIES THAT __________ is the registered owner of the Percentage Interest
evidenced by this Certificate in certain monthly distributions with respect
to a
Trust consisting of the Mortgage Loans deposited by Banc of America Funding
Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated [__________] (the “Pooling and Servicing
Agreement”), among the Depositor, [__________], as master servicer (the “Master
Servicer”), and securities administrator (the “Securities Administrator”), and
[__________], as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal
in respect of this Certificate is distributable monthly as set forth in the
Pooling and Servicing Agreement. Accordingly, the Certificate Balance
of this Certificate at any time may be less than the Certificate Balance as
set
forth herein. This Certificate does not evidence an obligation of, or
an interest in, and is not guaranteed by the Depositor, the Master
Servicer
B-XB2-2
and
Securities Administrator or the Trustee or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or
instrumentality.
Interest
will accrue on these Certificates at a per annum rate as provided in the Pooling
and Servicing Agreement.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
*
*
*
B-XB2-3
EXHIBIT
B-XB3
[FORM
OF
FACE OF CLASS X-B-3 CERTIFICATE]
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
X-B-3
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
REDUCTIONS
OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THE AMOUNT SET FORTH BELOW.
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
IN
THE
EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS EQUIVALENT,
NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE
POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-XB3-1
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
X-B-3
evidencing
an interest in a Trust consisting of four loan groups of fully-amortizing
[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:
|
[__________]
|
|
First
Distribution Date:
|
[__________]
|
|
Initial
Certificate
|
|
|
Balance
of this
|
|
|
Certificate:
|
$
|
|
Initial
Class Certificate
|
|
|
Balance
of this Class:
|
$[__________]
|
|
Pass-Through
Rate:
|
Variable
|
|
CUSIP
No.:
|
[__________]
|
|
ISIN
No.:
|
[__________]
|
THIS
CERTIFIES THAT __________ is the registered owner of the Percentage Interest
evidenced by this Certificate in certain monthly distributions with respect
to a
Trust consisting of the Mortgage Loans deposited by Banc of America Funding
Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated [__________] (the “Pooling and Servicing
Agreement”), among the Depositor, [__________], as master servicer (the “Master
Servicer”), and securities administrator (the “Securities Administrator”), and
[__________], as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal
in respect of this Certificate is distributable monthly as set forth in the
Pooling and Servicing Agreement. Accordingly, the Certificate Balance
of this Certificate at any time may be less than the Certificate Balance as
set
forth herein. This Certificate does not evidence an obligation of, or
an interest in, and is not guaranteed by the Depositor, the Master Servicer
and
Securities Administrator or the Trustee or any of their respective
affiliates. Neither this
B-XB3-2
Certificate
nor the Mortgage Loans are guaranteed or insured by any governmental agency
or
instrumentality.
Interest
will accrue on these Certificates at a per annum rate as provided in the Pooling
and Servicing Agreement.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
*
*
*
B-XB3-3
EXHIBIT
B-XB4
[FORM
OF
FACE OF CLASS X-B-4 CERTIFICATE]
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
X-B-4
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
REDUCTIONS
OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THE AMOUNT SET FORTH BELOW.
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “1933 ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING
AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING
AND SERVICING AGREEMENT REFERENCED HEREIN.
B-XB4-1
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
X-B-4
evidencing
an interest in a Trust consisting of four loan groups of fully-amortizing
[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:
|
[__________]
|
|
First
Distribution Date:
|
[__________]
|
|
Initial
Certificate
|
|
|
Balance
of this
|
|
|
Certificate:
|
$
|
|
Initial
Class Certificate
|
|
|
Balance
of this Class:
|
$[__________]
|
|
Pass-Through
Rate:
|
Variable
|
|
CUSIP
No.:
|
[__________]
|
|
ISIN
No.:
|
[__________]
|
THIS
CERTIFIES THAT __________ is the registered owner of the Percentage Interest
evidenced by this Certificate in certain monthly distributions with respect
to a
Trust consisting of the Mortgage Loans deposited by Banc of America Funding
Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated [__________] (the “Pooling and Servicing
Agreement”), among the Depositor, [__________], as master servicer (the “Master
Servicer”), and securities administrator (the “Securities Administrator”), and
[__________], as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal
in respect of this Certificate is distributable monthly as set forth in the
Pooling and Servicing Agreement. Accordingly, the Certificate Balance
of this Certificate at any time may be less than the Certificate Balance as
set
forth herein. This Certificate does not evidence an obligation of, or
an interest in, and is not guaranteed by the Depositor, the Master
Servicer
B-XB4-2
and
Securities Administrator or the Trustee or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or
instrumentality.
Interest
will accrue on these Certificates at a per annum rate as provided in the Pooling
and Servicing Agreement.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
exempt from the registration requirements of the Securities Act of 1933, as
amended (the “1933 Act”), and any applicable state securities laws or is made in
accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form
and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such
laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a
certificate from such Certificateholder’s prospective transferee substantially
in the form attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit
G-2B,
which certificates shall not be an expense of the Securities Administrator
or
the Depositor; provided that the foregoing requirements under clauses (i) and
(ii) shall not apply to a transfer of a Private Certificate between or among
the
Depositor, the Sponsor, their affiliates or both. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Securities Administrator and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
*
*
*
B-XB4-3
EXHIBIT
B-XB5
[FORM
OF
FACE OF CLASS X-B-5 CERTIFICATE]
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
X-B-5
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
REDUCTIONS
OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THE AMOUNT SET FORTH BELOW.
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “1933 ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING
AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING
AND SERVICING AGREEMENT REFERENCED HEREIN.
B-XB5-1
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
X-B-5
evidencing
an interest in a Trust consisting of four loan groups of fully-amortizing
[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:
|
[__________]
|
|
First
Distribution Date:
|
[__________]
|
|
Initial
Certificate
|
|
|
Balance
of this
|
|
|
Certificate:
|
$
|
|
Initial
Class Certificate
|
|
|
Balance
of this Class:
|
$[__________]
|
|
Pass-Through
Rate:
|
Variable
|
|
CUSIP
No.:
|
[__________]
|
|
ISIN
No.:
|
[__________]
|
THIS
CERTIFIES THAT __________ is the registered owner of the Percentage Interest
evidenced by this Certificate in certain monthly distributions with respect
to a
Trust consisting of the Mortgage Loans deposited by Banc of America Funding
Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated [__________] (the “Pooling and Servicing
Agreement”), among the Depositor, [__________], as master servicer (the “Master
Servicer”), and securities administrator (the “Securities Administrator”), and
[__________], as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal
in respect of this Certificate is distributable monthly as set forth in the
Pooling and Servicing Agreement. Accordingly, the Certificate Balance
of this Certificate at any time may be less than the Certificate Balance as
set
forth herein. This Certificate does not evidence an obligation of, or
an interest in, and is not guaranteed by the Depositor, the Master
Servicer,
B-XB5-2
the
Securities Administrator or the Trustee or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or
instrumentality.
Interest
will accrue on these Certificates at a per annum rate as provided in the Pooling
and Servicing Agreement.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
exempt from the registration requirements of the Securities Act of 1933, as
amended (the “1933 Act”), and any applicable state securities laws or is made in
accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form
and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such
laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a
certificate from such Certificateholder’s prospective transferee substantially
in the form attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit
G-2B,
which certificates shall not be an expense of the Securities Administrator
or
the Depositor; provided that the foregoing requirements under clauses (i) and
(ii) shall not apply to a transfer of a Private Certificate between or among
the
Depositor, the Sponsor, their affiliates or both. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Securities Administrator and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
*
*
*
B-XB5-3
EXHIBIT
B-XB6
[FORM
OF
FACE OF CLASS X-B-6 CERTIFICATE]
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
X-B-6
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
REDUCTIONS
OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THE AMOUNT SET FORTH BELOW.
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “1933 ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING
AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING
AND SERVICING AGREEMENT REFERENCED HEREIN.
B-XB6-1
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates, Series 20[__]-[_]
Class
X-B-6
evidencing
an interest in a Trust consisting of four loan groups of fully-amortizing
[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:
|
[__________]
|
|
First
Distribution Date:
|
[__________]
|
|
Initial
Certificate
|
|
|
Balance
of this
|
|
|
Certificate:
|
$
|
|
Initial
Class Certificate
|
|
|
Balance
of this Class:
|
$[__________]
|
|
Pass-Through
Rate:
|
Variable
|
|
CUSIP
No.:
|
[__________]
|
|
ISIN
No.:
|
[__________]
|
THIS
CERTIFIES THAT __________ is the registered owner of the Percentage Interest
evidenced by this Certificate in certain monthly distributions with respect
to a
Trust consisting of the Mortgage Loans deposited by Banc of America Funding
Corporation (the “Depositor”). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated [__________] (the “Pooling and Servicing
Agreement”), among the Depositor, [__________], as master servicer (the “Master
Servicer”), and securities administrator (the “Securities Administrator”), and
[__________], as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal
in respect of this Certificate is distributable monthly as set forth in the
Pooling and Servicing Agreement. Accordingly, the Certificate Balance
of this Certificate at any time may be less than the Certificate Balance as
set
forth herein. This Certificate does not evidence an obligation of, or
an interest in, and is not guaranteed by the Depositor, the Master
Servicer,
B-XB6-2
the
Securities Administrator or the Trustee or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or
instrumentality.
Interest
will accrue on these Certificates at a per annum rate as provided in the Pooling
and Servicing Agreement.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
exempt from the registration requirements of the Securities Act of 1933, as
amended (the “1933 Act”), and any applicable state securities laws or is made in
accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form
and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such
laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a
certificate from such Certificateholder’s prospective transferee substantially
in the form attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit
G-2B,
which certificates shall not be an expense of the Securities Administrator
or
the Depositor; provided that the foregoing requirements under clauses (i) and
(ii) shall not apply to a transfer of a Private Certificate between or among
the
Depositor, the Sponsor, their affiliates or both. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Securities Administrator and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
*
*
*
B-XB6-3
EXHIBIT
C
[FORM
OF
REVERSE OF ALL CERTIFICATES]
BANC
OF
AMERICA FUNDING CORPORATION
Mortgage
Pass-Through Certificates
This
Certificate is one of a duly authorized issue of Certificates designated as
Banc
of America Funding Corporation Mortgage Pass Through Certificates, of the Series
specified on the face hereof (collectively, the “Certificates”), and
representing a beneficial ownership interest in the Trust created by the Pooling
and Servicing Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Certificate Account for payment
hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the Pooling
and Servicing Agreement or, except as expressly provided in the Pooling and
Servicing Agreement, subject to any liability under the Pooling and Servicing
Agreement.
This
Certificate does not purport to summarize the Pooling and Servicing Agreement
and reference is made to the Pooling and Servicing Agreement for the interests,
rights and limitations of rights, benefits, obligations and duties evidenced
thereby, and the rights, duties and immunities of the Securities
Administrator.
Pursuant
to the terms of the Pooling and Servicing Agreement, a distribution will be
made
on the [__]th day of each calendar month (or, if such day is not a Business
Day,
the next Business Day) (each, a “Distribution Date”), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name
this
Certificate is registered at the close of business on the applicable Record
Date
in an amount required pursuant to the Pooling and Servicing
Agreement.
On
each
Distribution Date, the Securities Administrator shall distribute out of the
Certificate Account to each Certificateholder of record on the related Record
Date (other than respecting the final distribution) (a) by check mailed to
such
Certificateholder entitled to receive a distribution on such Distribution Date
at the address appearing in the Certificate Register, or (b) upon written
request by the Holder of a Certificate (other than a Residual Certificate),
by
wire transfer or by such other means of payment as such Certificateholder and
the Securities Administrator shall agree upon, such Certificateholder’s
Percentage Interest in the amount to which the related Class of Certificates
is
entitled in accordance with the priorities set forth in Article V of the Pooling
and Servicing Agreement. The final distribution on each Certificate
will be made in like manner, but only upon presentation and surrender of such
Certificate to the Securities Administrator as contemplated by Section 10.01
of
the Pooling and Servicing Agreement.
The
Pooling and Servicing Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Securities Administrator and the rights of the
Certificateholders under the Pooling and Servicing
C-1
Agreement
at any time by the Depositor, the Master Servicer, the Securities Administrator
and the Trustee with the consent of the Holders of Certificates affected by
such
amendment evidencing the requisite Percentage Interest, as provided in the
Pooling and Servicing Agreement. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Pooling
and Servicing Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register of the Securities Administrator upon surrender
of
this Certificate for registration of transfer at the Corporate Trust Office
of
the Securities Administrator accompanied by a written instrument of transfer
in
form satisfactory to the Securities Administrator and the Certificate Registrar
duly executed by the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Pooling and Servicing Agreement.
The
Depositor, the Master Servicer, the Certificate Registrar, the Securities
Administrator and the Trustee and any agent of the Depositor, the Master
Servicer, the Certificate Registrar, the Securities Administrator or the Trustee
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Certificate Registrar, the Trustee, the Securities Administrator or any such
agent shall be affected by any notice to the contrary.
On
any
Distribution Date on which the aggregate Stated Principal Balance of the Group
J
Mortgage Loans is less than [__]% of the aggregate unpaid principal balance
of
the Group J Mortgage Loans as of the Cut-off Date, the [__________] has the
option to purchase the Group J Mortgage Loans and related REO Properties under
the conditions set forth in Section 10.01 of the Pooling and Servicing
Agreement. On any Distribution Date on which the aggregate Stated
Principal Balance of the Group X Mortgage Loans is less than [__]% of the
aggregate unpaid principal balance of the Group X Mortgage Loans as of the
Cut-off Date, the [__________] has the option to purchase the Group X Mortgage
Loans and related REO Properties under the conditions set forth in Section
10.01
of the Pooling and Servicing Agreement. In the event that no such
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
C-2
the
death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
thereof.
Any
term
used herein that is defined in the Pooling and Servicing Agreement shall have
the meaning assigned in the Pooling and Servicing Agreement, and nothing herein
shall be deemed inconsistent with that meaning.
C-3
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be
duly executed.
Dated:
[__________],
as
Securities Administrator
By
__________________________________________
Authorized
Signatory
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the Pooling and Servicing Agreement
referenced herein.
[__________],
as
Securities Administrator
By ____________________________________________
Authorized
Signatory
C-4
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto _________________________________________________
__________________________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Securities Administrator to issue a new Certificate of a
like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:
__________________________________________________
Signature
by or on behalf of assignor
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
____________________________________________________ for the account of
___________________, account number _________________________, or, if mailed
by
check, to Applicable statements should be mailed to
This
information is provided
by ____________________________________________, the assignee
named above, or, as its agent.
X-0
XXXXXXX
X-0
LOAN
GROUP 1 MORTGAGE LOAN SCHEDULE
D-1
EXHIBIT
D-2
LOAN
GROUP 2 MORTGAGE LOAN SCHEDULE
D-2
EXHIBIT
D-3
LOAN
GROUP 3 MORTGAGE LOAN SCHEDULE
D-3
EXHIBIT
D-4
LOAN
GROUP 4 MORTGAGE LOAN SCHEDULE
D-4
EXHIBIT
E
REQUEST
FOR RELEASE OF DOCUMENTS
[Date]
|
To:
|
[__________]
|
|
|
[__________]
|
|
|
[__________]
|
|
|
Attention:
[__________]
|
|
Re:
|
The
Pooling and Servicing Agreement, dated [__________], among Banc of
America
Funding Corporation, as Depositor, [__________], as Securities
Administrator and Master Servicer, and [__________], as Trustee.
|
In
connection with the administration of the Mortgage Loans held by you, as
Custodian, pursuant to the above-captioned Pooling and Servicing Agreement,
we
request the release, and hereby acknowledge receipt, of the Mortgage File for
the Mortgage Loan described below, for the reason indicated.
Mortgage
Loan
Number:
Mortgagor
Name, Address
& Zip Code:
Reason
for Requesting
Documents (check one)
____
1. Mortgage
Paid in Full
____
2.
Foreclosure
____
3.
Substitution
____
4. Other
Liquidation
____
5. Nonliquidation Reason:
___________________
By: _________________________________________
(authorized
signer of Servicer)
Issuer: _______________________________________
Address: _____________________________________
_____________________________________________
Date: ________________________________________
E-1
Custodian
[__________]
Please
acknowledge the execution of the above request by your signature and date
below:
__________________________________
_______________
Signature
Date
Documents
returned to Custodian:
___________________________________
________________
Custodian
Date
E-2
EXHIBIT
F
FORM
OF
CERTIFICATION OF ESTABLISHMENT OF ACCOUNT
[__________]
[_______________]
hereby certifies that it has established a [__________] Account pursuant to
Section [________] of the Pooling and Servicing Agreement, dated
[__________], among Banc of America Funding Corporation, as Depositor,
[__________], as Securities Administrator and Master Servicer, and [__________],
as Trustee.
[_______________],
By: ____________________________________
Name: __________________________________
Title: ___________________________________
F-1
EXHIBIT
G-1
FORM
OF
TRANSFEROR’S CERTIFICATE
FOR
TRANSFERS OF PRIVATE CERTIFICATES
[Date]
[__________]
[__________]
[__________]
Attention:
[__________]
|
Re:
|
Banc
of America Funding Corporation, Mortgage Pass-Through
Certificates,
Series 20[__]-[_], Class ___, having an initial aggregate
Certificate
Balance as of [__________] 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 [__________], among Banc of America Funding Corporation, as Depositor,
[__________], as Securities Administrator and Master Servicer, and [__________],
as Trustee. All capitalized terms used herein and not otherwise
defined shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Securities Administrator, that:
1.
The Transferor is the lawful owner of the Transferred Certificates with the
full
right to transfer such Certificates free from any and all claims and
encumbrances whatsoever.
2.
Neither the Transferor nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to
any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in
a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation with respect to any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security by means of general
advertising or in any other manner, or (e) taken any other action with
respect to any Transferred Certificate, any interest in a Transferred
Certificate or any other similar security, which (in the case of any of the
acts
described in clauses (a) through (e) hereof) would constitute a distribution
of
the Transferred Certificates under the Securities Act of 1933, as amended (the
“1933 Act”), would render the disposition of the Transferred Certificates a
violation of Section 5 of the 1933 Act or
G-1-1
any
state
securities laws, or would require registration or qualification of the
Transferred Certificates pursuant to the 1933 Act or any state securities
laws.
Very
truly yours,
________________________________
(Transferor)
By: __________________________________
Name: ________________________________
Title: _________________________________
G-1-2
EXHIBIT
G-2A
FORM
1 OF
TRANSFEREE’S CERTIFICATE
FOR
TRANSFERS OF PRIVATE CERTIFICATES
[Date]
[__________]
[__________]
[__________]
Attention:
[__________]
|
|
Re:
|
Banc
of America Funding Corporation, Mortgage Pass-Through
Certificates,
Series 20[__]-[_], Class ___, having an initial
aggregate
Certificate Balance as of [__________] 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 [__________], among Banc of America Funding
Corporation, as Depositor, [__________], as Securities Administrator and Master
Servicer, and [__________], as Trustee. All capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth
in
the Pooling and Servicing Agreement. The Transferor hereby certifies,
represents and warrants to you, as Securities Administrator, that:
1.
The Transferee is a “qualified institutional buyer” (a “Qualified Institutional
Buyer”) as that term is defined in Rule 144A (“Rule 144A”) under the
Securities Act of 1933, as amended (the “1933 Act”), and has completed one of
the forms of certification to that effect attached hereto as Annex 1 and
Annex 2.
The Transferee is aware that the sale to it is being made in reliance on
Rule 144A. The Transferee is acquiring the Transferred
Certificates for its own account or for the account of another Qualified
Institutional Buyer, and understands that such Transferred Certificates may
be
resold, pledged or transferred only (a) to a person reasonably believed to
be a Qualified Institutional Buyer that purchases for its own account or for
the
account of another Qualified Institutional Buyer to whom notice is given that
the resale, pledge or transfer is being made in reliance on Rule 144A, or
(b) pursuant to another exemption from registration under the 1933
Act.
2.
The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Transferred Certificates and distributions thereon,
(c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement and the Trust created pursuant
thereto, (e) any credit enhancement mechanism
G-2A-1
associated
with the Transferred Certificate, and (f) all related matters, that it has
requested.
3.
If the Transferee proposes that the Transferred Certificates be registered
in
the name of a nominee, such nominee has completed the Nominee Acknowledgment
below.
Very
truly yours,
___________________________________
(Transferor)
By: _____________________________________
Name: __________________________________
Title: ___________________________________
G-2A-2
Nominee
Acknowledgment
The
undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof
is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
____________________________________
(Nominee)
By: _____________________________________
Name: ___________________________________
Title: ____________________________________
G-2A-3
ANNEX
1
TO EXHIBIT G-2A
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned hereby certifies as follows to [__________________] (the
“Transferor”) [__________], as Securities Administrator with respect to the
mortgage pass-through certificates (the “Transferred Certificates”) described in
the Transferee certificate to which this certification relates and to which
this
certification is an Annex:
1.
As indicated below, the undersigned is the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of the entity
purchasing the Transferred Certificates (the “Transferee”).
2.
The Transferee is a “qualified institutional buyer” as that term is defined in
Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended,
because (i) the Transferee owned and/or invested on a discretionary basis
$______________________(1)
in
securities (other than the excluded securities referred to below) as of the
end
of the Transferee’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the
criteria in the category marked below.
|
|
___
|
Corporation,
etc. The Transferee is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts
or
similar business trust, partnership, or any organization described
in
Section 501(c)(3) of the Internal Revenue Code of 1986.
|
|
|
___
|
Bank. The
Transferee (a) is a national bank or a banking institution organized
under the laws of any state, U.S. territory or the District of Columbia,
the business of which is substantially confined to banking and is
supervised by the state or territorial banking commission or similar
official or is a foreign bank or equivalent institution, and (b) has
an audited net worth of at least $25,000,000 as demonstrated in its
latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale of
the
Transferred Certificates in the case of a U.S. bank, and not more
than 18
months preceding such date of sale in the case of a foreign bank
or
equivalent institution.
|
|
|
___
|
Savings
and
Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank, homestead
association or similar institution, which is supervised and examined
by a
state or federal authority having supervision over any such institutions,
or is a foreign savings and loan
|
(1)
Transferee must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Transferee is a dealer, and, in that case, Transferee
must
own and/or invest on a discretionary basis at least $10,000,000 in
securities.
G-2A-4
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.
G-2A-5
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.
|
____
____
Yes
No
|
Will
the Transferee be purchasing the Transferred
Certificates
only for the Transferee’s own
account?
|
6.
If the answer to the foregoing question is “no,” then in each case where the
Transferee is purchasing for an account other than its own, such account belongs
to a third party that is itself a “qualified institutional buyer” within the
meaning of Rule 144A, and the “qualified institutional buyer” status of
such third party has been established by the Transferee through one or more
of
the appropriate methods contemplated by Rule 144A.
7.
The Transferee will notify each of the parties to which this certification
is
made of any changes in the information and conclusions herein. Until such notice
is given, the Transferee’s purchase of the Transferred Certificates will
constitute a reaffirmation of this certification as of the date of such
purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become
available.
____________________________________________________
Print
Name of Transferee
By: _________________________________________________
Name: _______________________________________________
Title:
________________________________________________
Date: ________________________________________________
G-2A-6
ANNEX
2
TO EXHIBIT G-2A
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That Are Registered Investment Companies]
The
undersigned hereby certifies as follows to [_________________] (the
“Transferor”) [__________], as Securities Administrator, with respect to the
mortgage pass-through certificates (the “Transferred Certificates”) described in
the Transferee certificate to which this certification relates and to which
this
certification is an Annex:
1.
As indicated below, the undersigned is the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of the entity
purchasing the Transferred Certificates (the “Transferee”) or, if the Transferee
is a “qualified institutional buyer” as that term is defined in Rule 144A
(“Rule 144A”) under the Securities Act of 1933, as amended, because the
Transferee is part of a Family of Investment Companies (as defined below),
is an
executive officer of the investment adviser (the “Adviser”).
2.
The Transferee is a “qualified institutional buyer” as defined in Rule 144A
because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, and (ii) as marked below, the Transferee
alone owned and/or invested on a discretionary basis, or the Transferee’s Family
of Investment Companies owned, at least $100,000,000 in securities (other than
the excluded securities referred to below) as of the end of the Transferee’s
most recent fiscal year. For purposes of determining the amount of
securities owned by the Transferee or the Transferee’s Family of Investment
Companies, the cost of such securities was used, unless the Transferee or any
member of the Transferee’s Family of Investment Companies, as the case may be,
reports its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost of
those
securities has been published, in which case the securities of such entity
were
valued at market.
|
____
|
The
Transferee owned and/or invested on a discretionary basis $__________
in
securities (other than the excluded securities referred to below)
as of
the end of the Transferee’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
|
|
____
|
The
Transferee is part of a Family of Investment Companies which owned
in the
aggregate $__________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee’s most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
|
3.
The term “Family of
Investment Companies” as used herein means two or more registered
investment companies (or series thereof) that have the same investment adviser
or investment advisers that are affiliated (by virtue of being majority owned
subsidiaries of the same parent or because one investment adviser is a majority
owned subsidiary of the other).
G-2A-7
4.
The term “securities” as used
herein does not include (i) securities of issuers that are affiliated with
the Transferee or are part of the Transferee’s Family of Investment Companies,
(ii) bank deposit notes and certificates of deposit, (iii) loan
participations, (iv) repurchase agreements, (v) securities owned but
subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee,
or
owned by the Transferee’s Family of Investment Companies, the securities
referred to in this paragraph were excluded.
5.
The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
|
____ ____
Yes
No
|
Will
the Transferee be purchasing the Transferred Certificates only for
the
Transferee’s own account?
|
6.
If the answer to the foregoing question is “no,” then in each case where the
Transferee is purchasing for an account other than its own, such account belongs
to a third party that is itself a “qualified institutional buyer” within the
meaning of Rule 144A, and the “qualified institutional buyer” status of
such third party has been established by the Transferee through one or more
of
the appropriate methods contemplated by Rule 144A.
7.
The undersigned will notify the parties to which this certification is made
of
any changes in the information and conclusions herein. Until such notice, the
Transferee’s purchase of the Transferred Certificates will constitute a
reaffirmation of this certification by the undersigned as of the date of such
purchase.
_____________________________________________
Print
Name of Transferee or Adviser
By:
__________________________________________
Name: _______________________________________
Title: ________________________________________
IF
AN
ADVISER:
________________________________________
Print
Name of Transferee
By: __________________________________________
Date: _________________________________________
G-2A-8
EXHIBIT
G-2B
FORM
2 OF
TRANSFEREE’S CERTIFICATE
FOR
TRANSFERS OF PRIVATE CERTIFICATES
[Date]
[__________]
[__________]
[__________]
Attention:
[__________]
|
|
Re:
|
Banc
of America Funding Corporation, Mortgage Pass-Through
Certificates,
Series 20[__]-[_], Class ___, having an initial
aggregate
Certificate Balance as of [__________] 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 [__________], among Banc of America Funding Corporation, as Depositor,
[__________], as Securities Administrator and as Master Servicer, and
[__________], as Trustee. All capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Pooling
and Servicing Agreement. The Transferor hereby certifies, represents
and warrants to you, as Securities Administrator, that:
1.
Transferee is acquiring the Transferred Certificates for its own account for
investment and not with a view to or for sale or transfer in connection with
any
distribution thereof, in whole or in part, in any manner which would violate
the
Securities Act of 1933, as amended (the “1933 Act”), or any applicable state
securities laws.
2.
Transferee understands that (a) the Transferred Certificates have not been
and will not be registered under the 1933 Act or registered or qualified under
any applicable state securities laws, (b) neither the Depositor nor the
Securities Administrator is obligated 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 Securities Administrator or
the Depositor may require a written Opinion of Counsel (which may be in-house
counsel) acceptable to and in form and substance reasonably satisfactory to
the
Securities Administrator and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act and such laws or is being made pursuant to the
1933
Act and such laws, which Opinion of Counsel shall not be an expense of the
Securities Administrator or the Depositor and (ii) the Securities
Administrator shall
G-2B-1
require
a
certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and
a certificate from such Certificateholder’s prospective transferee substantially
in the form attached to the Pooling and Servicing Agreement either as Exhibit G-2A or
as Exhibit G-2B,
which certificates shall not be an
expense of the Securities Administrator or the Depositor; provided
that the foregoing requirements under
clauses (i) and (ii) shall not apply to a transfer of a Private
Certificate between or among the
Depositor, the Seller, their affiliates or both.
3.
The Transferee understands that it may not sell or otherwise transfer the
Transferred Certificates, any security issued in exchange therefor or in lieu
thereof or any interest in the foregoing except in compliance with the
provisions of Section 6.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates
will
bear legends substantially to the following effect:
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “1933 ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING
AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING
AND SERVICING AGREEMENT REFERENCED HEREIN.
4.
Neither the Transferee nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to
any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in
a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or
(e) taken any other action, that (in the case of any of the acts described
in clauses (a) through (d) above) would constitute a distribution of the
Transferred Certificates under the 1933 Act, would render the disposition of
the
Transferred Certificates a violation of Section 5 of the 1933 Act or any
state securities law or would require registration or qualification of the
Transferred Certificates pursuant thereto. The Transferee will not
act, nor has it authorized nor will it authorize any person to act, in any
manner set forth in the foregoing sentence with respect to the Transferred
Certificates, any interest in the Transferred Certificates or any other similar
security.
5.
The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Transferred Certificates and distributions thereon,
(c) nature, performance and servicing of the Mortgage Loans, (d) the
Pooling and Servicing Agreement and the Trust created
G-2B-2
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: _____________________________
G-2B-3
Nominee
Acknowledgment
The
undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof
is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
________________________________
(Nominee)
By: _____________________________
Name: ___________________________
Title: ____________________________
G-2B-4
EXHIBIT
H
FORM
OF
TRANSFEREE REPRESENTATION LETTER
FOR
ERISA
RESTRICTED CERTIFICATES
[__________]
[__________]
[__________]
Attention:
[__________]
|
|
Re:
|
Banc
of America Funding Corporation, Mortgage Pass-Through
Certificates,
Series 20[__]-[_], Class ___, having an initial
aggregate
Certificate Balance as of [__________] 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 [__________], among Banc of America Funding Corporation, as Depositor,
[__________], as Securities Administrator and Master Servicer, and [__________],
as Trustee. All capitalized terms used herein and not otherwise
defined shall have the respective meanings set forth in the Pooling and
Servicing Agreement.
The
Transferee hereby certifies, represents and warrants to you, as Securities
Administrator, either that:
(a)
it is not an employee benefit plan or arrangement, subject to Title I of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or
Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or a
Person acting on behalf of, or using the assets of, any such employee benefit
plan or arrangement (collectively, a “Plan”) to effect the purchase of the
Transferred Certificates; or
(b)
with respect to any ERISA Restricted Certificate other than a Class 2-A-R
Certificate, it is an insurance company using funds from an “insurance company
general account” (as defined in Section V(e) of Prohibited Transaction
Class Exemption 95-60 (“PTCE 95-60”), 60 Fed. Reg. 35925 (July 12, 1995)), to
purchase the Transferred Certificates and the purchase and holding of the
Transferred Certificates are covered by Section I and Section III of PTCE
95-60.
H-1
Capitalized
terms used in and not otherwise defined herein shall have the meaning assigned
to them in the Pooling and Servicing Agreement.
Very
truly yours,
_____________________________
(Transferee)
By: ______________________________
Name: ___________________________
Title: ____________________________
Date: ____________________________
H-2
EXHIBIT
I
FORM
OF
AFFIDAVIT REGARDING TRANSFER OF
RESIDUAL
CERTIFICATE
Banc
of
America Funding Corporation
Mortgage
Pass-Through Certificates,
Series
20[__]-[_]
|
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 2-A-R Certificate (the “Residual
Certificate”) issued pursuant to the Pooling and Servicing Agreement, dated
[__________] (the “Agreement”), among Banc of America Funding Corporation, as
Depositor, [__________], as Securities Administrator and Master Servicer, and
[__________], as Trustee. Capitalized terms used but not defined
herein shall have the meanings ascribed to such terms in the
Agreement. The Transferee has authorized the undersigned to make this
affidavit on behalf of the Transferee.
2.
The Transferee is, as of the date hereof, and will be, as of the date of the
transfer, a Permitted Transferee. The Transferee is acquiring the Residual
Certificate either (i) for its own account or (ii) as nominee, trustee or
agent for another Person who is a Permitted Transferee and has attached hereto
an affidavit from such Person in substantially the same form as this
affidavit. The Transferee has no knowledge that any such affidavit is
false.
3.
The Transferee has been advised of, and understands that (i) a tax will be
imposed on transfers of the Residual Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or,
if
such transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability
for
the tax if the subsequent Transferee furnished to such Person an affidavit
that
such subsequent Transferee is a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false.
4.
The Transferee has been advised of, and understands that a tax will be imposed
on a “pass-through entity” holding the Certificate if at any time during the
taxable year of the pass-through entity a Person that is not a Permitted
Transferee is the record Holder of an interest in such entity. The
Transferee understands that, other than in the case of an “electing large
partnership” under Section 775 of the Code, such tax will not be imposed
for any period with respect to which the record Holder furnishes to the
pass-through entity an affidavit that such record Holder is a Permitted
Transferee and the pass-through entity does not have actual knowledge that
such
affidavit is false. (For this purpose, a “pass-through entity” includes
a
I-1
regulated
investment company, a real estate investment trust or common trust fund, a
partnership, trust or estate, and certain cooperatives and, except as may be
provided in Treasury Regulations, persons holding interests in pass-through
entities as a nominee for another Person.)
5.
The Transferee has reviewed the provisions of Section 6.02 of the Agreement
and understands the legal consequences of the acquisition of the Residual
Certificate including, without limitation, the restrictions on subsequent
transfers and the provisions regarding voiding the transfer and mandatory
sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 6.02 of the Agreement and the restrictions noted
on the face of the Certificate. The Transferee understands and agrees
that any breach of any of the representations included herein shall render
the
transfer to the Transferee contemplated hereby null and void.
6.
The Transferee agrees to require a transfer affidavit in the form of this
Affidavit from any Person to whom the Transferee attempts to transfer the
Residual Certificate, and in connection with any transfer by a Person for whom
the Transferee is acting as nominee, trustee or agent, and the Transferee will
not transfer the Residual Certificate or cause the Residual Certificate to
be
transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such transfer by the Transferee, the
Transferee agrees to deliver to the Securities Administrator a certificate
substantially in the form set forth in Exhibit T to the
Agreement (a “Transferor Certificate”) to the effect that such Transferee has no
actual knowledge that the Person to which the transfer is to be made is not
a
Permitted Transferee and no reason to believe that the statements in such
Person’s transfer affidavit are false.
7.
The Transferee historically has paid its debts as they have become due, and
it
intends to do so in the future.
8.
The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the Residual
Certificate.
9.
The taxpayer identification number of the Transferee’s (or the Transferee’s
nominee, if applicable) is ___________.
10.
The Transferee is a (i) U.S. Person as defined in Code Section 7701(a)(30)
or (ii) (A) the Transferee holds the Residual Certificate in connection
with the conduct of a trade or business within the United States and has
furnished the transferor and the Securities Administrator with an effective
Internal Revenue Service Form W-8ECI (or successor thereto) or (B) the
Transferee has delivered to both the transferor and the Securities Administrator
an Opinion of Counsel from a nationally-recognized tax counsel to the effect
that such transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of the Residual
Certificate will not be disregarded for federal income tax
purposes.
11.
The Transferee is aware that the Residual Certificate may be a “noneconomic
residual interest” within the meaning of Treasury Regulations promulgated
pursuant to the Code and that the transferor of a noneconomic residual interest
will remain liable for any taxes due
I-2
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
U.S.
Person.
13.
If the Transferee is purchasing the Residual Certificate in a transfer intended
to meet the safe harbor provisions of Treasury Regulations Sections 1.860E-1(c),
the Transferee has executed and attached Attachment A hereto.
14.
The Transferee is not an employee benefit plan or arrangement, subject to Title
I of ERISA, or Section 4975 of the Code and the Transferee is not acting on
behalf of, or using assets of, such an employee benefit plan or
arrangement.
15.
The Transferee understands that it may incur tax liabilities with respect to
the
Residual Certificate in excess of cash flows generated thereby.
16.
The Transferee intends to pay taxes associated with holding the Residual
Certificate as such taxes become due.
*
*
*
I-3
IN
WITNESS WHEREOF, the Transferee has caused this instrument to be executed on
its
behalf, pursuant to authority of its Board of Directors, by its duly authorized
officer this _____ day of ________________, ____.
_______________________________________
Print
Name of Transferee
By: ____________________________________
Name:
Title:
Personally
appeared before me the above-named ______________________________, known or
proved to me to be the same person who executed the foregoing instrument and
to
be the _______________________ of the Transferee, and acknowledged that he
executed the same as his free act and deed and the free act and deed of the
Transferee.
Subscribed
and sworn before me this _____ day of _______________________, ____
____________________________________________
NOTARY
PUBLIC
My
Commission expires the ____ day of ______________, ____
I-4
ATTACHMENT
A
to
AFFIDAVIT
PURSUANT TO SECTION 860E(e)(4) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
AND FOR NON-ERISA INVESTORS
|
|
Check
the appropriate box:
|
|
|
The
consideration paid to the Transferee to acquire the Residual Certificate
equals or exceeds the excess of (a) the present value of the
anticipated tax liabilities over (b) the present value of the
anticipated savings associated with holding such Residual Certificate,
in
each case calculated in accordance with U.S. Treasury Regulations
Sections 1.860E-1(c)(7) and (8), computing present values using a
discount rate equal to the short-term Federal rate prescribed by
Section 1274(d) of the Code and the compounding period used by the
Transferee.
|
|
|
OR
|
|
|
The
transfer of the Residual Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly:
|
|
|
(i)
|
the
Transferee is an “eligible corporation,” as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), as to which income from
Residual Certificate will only be taxed in the United States;
|
|
|
(ii)
|
at
the time of the transfer, and at the close of the Transferee’s two fiscal
years preceding the year of the transfer, the Transferee had gross
assets
for financial reporting purposes (excluding any obligation of a person
related to the Transferee within the meaning of U.S. Treasury Regulations
Section 1.860E-1(c)(6)(ii)) in excess of $100 million and net assets
in excess of $10 million;
|
|
|
(iii)
|
the
Transferee will transfer the Residual Certificate only to another
“eligible corporation,” as defined in U.S. Treasury Regulations
Section 1.860E-1(c)(6)(i), in a transaction that satisfies the
requirements of Sections 1.860E-1(c)(4)(i), (ii) and (iii) and
Section 1.860E-1(c)(5) of the U.S. Treasury Regulations;
|
|
|
(iv)
|
the
Transferee has determined the consideration paid to it to acquire
the
Residual Certificate based on reasonable market assumptions (including,
but not limited to, borrowing and investment rates, prepayment and
loss
assumptions, expense and reinvestment assumptions, tax rates and
other
factors specific to the Transferee) that it has determined in good
faith;
and
|
I-5
|
|
(v)
|
in
the event of any transfer of the Residual Certificate by the Transferee,
the Transferee will require its transferee to complete a representation
in
the form of this Attachment A as a condition of such transferee’s
purchase of the Residual Certificate.
|
I-6
EXHIBIT
J
LIST
OF
RECORDATION STATES
[__________]
[__________]
J-1
EXHIBIT
K
FORM
OF
INITIAL CERTIFICATION
[__________]
Banc
of
America Funding Corporation
000
Xxxxx
Xxxxx Xxxxxx
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
[__________]
[__________]
[__________]
Attention:
[__________]
|
|
Re:
|
The
Pooling and Servicing Agreement, dated [__________] (the “Pooling
and
Servicing Agreement”), among the Depositor, [__________], as
securities
administrator and master servicer, and [__________], as trustee.
|
Ladies
and Gentlemen:
In
accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”), the
undersigned, as [Trustee] [Custodian], hereby certifies that, except as
specified in any list of exceptions attached hereto, it has received the
original Mortgage Note relating to each of the Mortgage Loans listed on the
Mortgage Loan Schedule.
The
[Trustee] [Custodian] has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in
the
Pooling and Servicing Agreement in connection with this Initial
Certification. The [Trustee] [Custodian] makes no representations as
to: (i) the validity, legality, sufficiency, enforceability, recordability
or genuineness of any of the documents contained in each Mortgage File or any
of
the Mortgage Loans identified in the Mortgage Loan Schedule or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan.
K-1
Capitalized
terms used but not defined herein shall have the meanings ascribed to such
terms
in the Pooling and Servicing Agreement.
[[__________],
as
Trustee]
[______________________,
as
Custodian]
By: _________________________
Name:________________________
Title:_________________________
K-2
EXHIBIT
L
FORM
OF
FINAL CERTIFICATION
[__________
__, ____]
Banc
of
America Funding Corporation
000
Xxxxx
Xxxxx Xxxxxx
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
[__________]
[__________]
[__________]
Attention:
[__________]
|
|
Re:
|
The
Pooling and Servicing Agreement, dated [__________] (the
“Pooling
and
Servicing Agreement”), among the Depositor, [__________], as
securities
administrator and master servicer, and [__________], as trustee.
|
Ladies
and Gentlemen:
In
accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement, the undersigned, as [Trustee] [Custodian],
hereby certifies that, as to each Mortgage Loan listed in the Mortgage Loan
Schedule, except as may be specified in any list of exceptions attached hereto,
such Mortgage File contains all of the items required to be delivered pursuant
to Section 2.01(b) of the Pooling and Servicing Agreement.
The
[Trustee] [Custodian] has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in
the
Pooling and Servicing Agreement in connection with this Final
Certification. The [Trustee] [Custodian] makes no representations as
to: (i) the validity, legality, sufficiency, enforceability, recordability
or genuineness of any of the documents contained in each Mortgage File or any
of
the Mortgage Loans identified in the Mortgage Loan Schedule or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan.
L-1
Capitalized
terms used but not defined herein shall have the meanings ascribed to such
terms
in the Pooling and Servicing Agreement.
[[__________],
as
Trustee]
[__________________________,
as
Custodian]
By: __________________________________
Name:_________________________________
Title:__________________________________
L-2
EXHIBIT
M
FORM
OF
XXXXXXXX-XXXXX CERTIFICATION
Banc
of
America Funding Corporation
Mortgage
Pass-Through Certificates,
Series
20[__]-[_]
I,
[________], a [senior officer in charge of the servicing function] of
[__________] (the “Master Servicer”), certify that:
|
1.
|
I
have reviewed this report on Form 10-K and all reports on Form 10-D
required to be filed in respect of the period covered by this report
on
Form 10-K of the Banc of America Funding 20[__]-[_] Trust (the “Exchange
Act Periodic Reports”);
|
|
2.
|
Based
on my knowledge, the Exchange Act Periodic Reports, taken as a whole,
do
not contain any untrue statement of a material fact or omit to state
a
material fact necessary to make the statements made, in light of
the
circumstances under which such statements were made, not misleading
with
respect to the period covered by this report;
|
|
3.
|
Based
on my knowledge, all of the distribution, servicing and other information
required to be provided under Form 10-D for the period covered by
this
report is included in the Exchange Act Periodic Reports;
|
|
4.
|
I
am responsible for reviewing the activities performed by the servicers
and
based on my knowledge and the compliance reviews conducted in preparing
the servicer compliance statements required in this report under
Item 1123
of Regulation AB, and except as disclosed in the Exchange Act Periodic
Reports, the servicers have fulfilled their obligations under the
servicing agreements in all material respects; and
|
|
5.
|
All
of the reports on assessment of compliance with the servicing criteria
for
asset-backed securities and their related attestation reports on
assessment of compliance with servicing criteria for asset-backed
securities required to be included in this report in accordance with
Item
1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d- 18 have
been
included as an exhibit to this report, except as otherwise disclosed
in
this report. Any material instances of noncompliance described in
such
reports have been disclosed in this report on Form 10-K.
|
In
giving
the certifications above, I have reasonably relied on information provided
to me
by the following unaffiliated
parties: [______________________________].
[_________],
20[__]
[Senior
Officer in Charge of the Servicing Function of the Master
Servicer]
M-1
EXHIBIT
N
RELEVANT
SERVICING CRITERIA
|
Servicing
Criteria
|
Parties
Responsible
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
Master
Servicer and Securities Administrator
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
Master
Servicer and Securities Administrator
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the pool assets are maintained.
|
Not
applicable
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
Master
Servicer
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
Master
Servicer and Securities Administrator
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
Master
Servicer and Securities Administrator
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
Master
Servicer and Securities Administrator
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
Master
Servicer and Securities
Administrator
|
N-1
|
Servicing
Criteria
|
Parties
Responsible
|
||
|
Reference
|
Criteria
|
||
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For
purposes of this criterion, “federally insured depository institution”
with respect to a foreign financial institution means a foreign financial
institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
Master
Servicer and Securities Administrator
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded
so as to prevent unauthorized access.
|
Master
Servicer and Securities Administrator
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically
accurate; (B) prepared within 30 calendar days after the bank statement
cutoff date, or such other number of days specified in the
transaction
agreements;
(C) reviewed and approved by someone other than the person who prepared
the reconciliation; and (D) contain explanations for reconciling
items. These reconciling items are resolved within 90 calendar
days of their original identification, or such other number
of
days
specified in the transaction agreements.
|
Master
Servicer and Securities Administrator
|
|
|
Investor
Remittances and Reporting
|
|||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A)
are prepared in accordance with timeframes and other terms set
forth in the transaction agreements; (B) provide information calculated
in
accordance with the terms specified in the transaction agreements;
(C) are
filed with the Commission as required by its rules and regulations;
and
(D) agree with investors’ or the trustee’s records as to the total unpaid
principal balance and number of pool assets serviced by the
Servicer.
|
Master
Servicer and Securities Administrator
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
Master
Servicer and Securities Administrator
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
Master
Servicer and Securities Administrator
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
Master
Servicer and Securities
Administrator
|
|
N-2
|
Servicing
Criteria
|
Parties
Responsible
|
||
|
Reference
|
Criteria
|
||
|
Pool
Asset Administration
|
|||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
Custodian
|
|
|
1122(d)(4)(ii)
|
Pool
asset and related documents are safeguarded as required by the transaction
agreements
|
Custodian
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
||
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with the
related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in
accordance
with the related pool asset documents.
|
||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s pool asset (e.g., loan
modifications or re-agings) are made, reviewed and approved by authorized
personnel in accordance with the transaction agreements and related
pool
asset documents.
|
||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
pool
asset is delinquent in accordance with the transaction
agreements. Such records are maintained on at least a monthly
basis, or such other period specified in the transaction agreements,
and
describe the entity’s activities in monitoring delinquent pool assets
including, for example, phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed temporary (e.g., illness
or
unemployment).
|
||
N-3
|
Servicing
Criteria
|
Parties
Responsible
|
||
|
Reference
|
Criteria
|
||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow
accounts): (A) such funds are analyzed, in accordance with the
obligor’s pool asset documents, on at least an annual basis, or such other
period specified in the transaction agreements; (B) interest on such
funds
is paid, or credited, to obligors in accordance with applicable pool
asset
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related pool assets,
or
such other number of days specified in the transaction
agreements.
|
||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
Master
Servicer and Securities Administrator
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
Master
Servicer and Securities
Administrator
|
|
N-4
EXHIBIT
O
ADDITIONAL
FORM 10-D DISCLOSURE
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
Any
information required by 1121 which is NOT included on the Monthly
Statement
|
Master
Servicer
Securities
Administrator
Depositor
|
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Master
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Item
3: Sale of Securities and Use of Proceeds
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or issuing
entity, that are backed by the same asset pool or are otherwise issued
by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing
information can be omitted if securities were not
registered.
|
Depositor
|
O-1
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
4: Defaults Upon Senior Securities
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any grace
period and provision of any required notice)
|
Securities
Administrator
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Securities
Administrator
|
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) –Significant
Obligor Financial
Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Item
7: Significant Enhancement Provider Information
Item
1114(b)(2) – Credit Enhancement Provider Financial
Information*
|
|
|
▪
Determining applicable disclosure threshold
|
Securities
Administrator
|
|
▪
Requesting required financial information or effecting incorporation
by
reference
|
Securities
Administrator
|
|
Item
1115(b) – Derivative Counterparty Financial Information*
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Securities
Administrator
|
|
▪
Requesting required financial information or effecting incorporation
by
reference
|
Securities
Administrator
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Item
8: Other Information
Disclose
any information required to be reported on Form 8-K during the period
covered by the Form 10-D but not reported
|
Any
party responsible for the applicable Form 8-K Disclosure
item
|
|
Item
9: Exhibits
|
|
|
Monthly
Statement to Certificateholders
|
Securities
Administrator
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
O-2
EXHIBIT
P
ADDITIONAL
FORM 10-K DISCLOSURE
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
9B: Other Information
Disclose
any information required to be reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not reported
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
Securities
Administrator
Depositor
|
|
Reg
AB Item 1112(b): Significant Obligors of Pool
Assets
|
|
|
Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Reg
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
|
|
|
▪
Determining applicable disclosure threshold
|
Securities
Administrator
|
|
▪
Requesting required financial information or effecting incorporation
by
reference
|
Securities
Administrator
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1115(b): Derivative Counterparty Financial
Information
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Securities
Administrator
|
|
▪
Requesting required financial information or effecting incorporation
by
reference
|
Securities
Administrator
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1117: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and
Depositor
|
P-1
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Master
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Reg
AB Item 1119: Affiliations and Relationships
|
|
|
Whether
(a) the Sponsor (Seller), Depositor or Issuing Entity is an affiliate
of
the following parties, and (b) to the extent known and material,
any of
the following parties are affiliated with one another:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Master
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any “outside the ordinary course business arrangements” other
than would be obtained in an arm’s length transaction between (a) the
Sponsor (Seller), Depositor or Issuing Entity on the one hand, and
(b) any
of the following parties (or their affiliates) on the other hand,
that
exist currently or within the past two years and that are material
to a
Certificateholder’s understanding of the Certificates:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Master
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
P-2
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any specific relationships involving the transaction or
the pool
assets between (a) the Sponsor (Seller), Depositor or Issuing Entity
on
the one hand, and (b) any of the following parties (or their affiliates)
on the other hand, that exist currently or within the past two years
and
that are material:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Master
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
P-3
EXHIBIT
Q
FORM
8-K
DISCLOSURE
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
Disclosure
is required regarding entry into or amendment of any definitive agreement
that is material to the securitization, even if depositor is not
a
party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
All
parties, but only to the extent they are a party
|
|
Item
1.02- Termination of a Material Definitive Agreement
Disclosure
is required regarding termination of any definitive agreement
that is material to the securitization (other than expiration in
accordance with its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
All
parties, but only to the extent they are a party
|
|
Item
1.03- Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
Depositor
|
|
▪
Sponsor (Seller)
|
Depositor/Sponsor
(Seller)
|
|
▪
Depositor
|
Depositor
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Affiliated Servicer
|
Master
Servicer
|
|
▪
Other Servicer servicing 20% or more of the pool assets at the time
of the
report
|
Master
Servicer
|
|
▪
Other material servicers
|
Master
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Significant Obligor
|
Depositor
|
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
|
▪
Derivative Counterparty
|
Depositor
|
Q-1
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
▪
Custodian
|
Custodian
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are disclosed
in the monthly statements to the certificateholders.
|
Depositor
Master
Servicer
Securities
Administrator
|
|
Item
3.03- Material Modification to Rights of Security Holders
Disclosure
is required of any material modification to documents defining the
rights
of Certificateholders, including the Pooling and Servicing
Agreement.
|
Securities
Administrator
Trustee
Depositor
(with
respect to each, only to the extent they are a party)
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change of
Fiscal
Year
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”.
|
Depositor
|
|
Item
6.01- ABS Informational and Computational Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Securities Administrator
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing 10%
or more
of pool assets at time of report, other material servicers or
trustee.
|
Master
Servicer/Securities Administrator/Depositor
|
|
Reg
AB disclosure about any new master servicer is also
required.
|
Master
Servicer
|
|
Reg
AB disclosure about any new Trustee is also required.
|
Trustee
|
Q-2
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
6.03- Change in Credit Enhancement or External Support
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as
derivatives.
|
Depositor/Securities
Administrator
|
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Securities
Administrator
|
|
Item
6.05- Securities Act Updating Disclosure
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
Item
7.01- Reg FD Disclosure
|
Depositor
|
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
certificateholders.
|
Depositor
|
|
Item
9.01- Financial Statements and Exhibits
|
Responsible
party for reporting/disclosing the financial statement or
exhibit
|
Q-3
EXHIBIT
R
FORM
OF
BACK-UP CERTIFICATION
Banc
of
America Funding Corporation
Mortgage
Pass-Through Certificates,
Series
20[__]-[_]
The
[________] hereby certifies to the Master Servicer, and its officers, directors
and affiliates, and with the knowledge and intent that they will rely upon
this
certification, that:
1.
I have reviewed the annual report on Form 10-K for the fiscal year [____] (the
“Annual
Report”), and all reports on Form 10-D required to be filed in respect of
period covered by the Annual Report (collectively with the Annual Report, the
“Reports”), of
the Trust;
2.
To my knowledge, (a) the Reports, taken as a whole, do not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make
the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by the Annual
Report, and (b) the [___________]’s assessment of compliance and related
attestation report referred to below, taken as a whole, do not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
such
assessment of compliance and attestation report;
3.
To my knowledge, the distribution information required to be provided by the
[__________] under the Pooling and Servicing Agreement for inclusion in the
Reports is included in the Reports;
4.
I am responsible for reviewing the activities performed by the [_________]
under
the Pooling and Servicing Agreement, and based on my knowledge and the
compliance review conducted in preparing the compliance statement of the
[_________] required by the Pooling and Servicing Agreement, and except as
disclosed in the Reports, the [_________] has fulfilled its obligations under
the Pooling and Servicing Agreement in all material respects; and
5.
The report on assessment of compliance with servicing criteria applicable to
the
[_________] for asset-backed securities of the [_________] and each
Subcontractor utilized by the [_________] and related attestation report on
assessment of compliance with servicing criteria applicable to it required
to be
included in the Annual Report in accordance with Item 1122 of Regulation AB
and
Exchange Act Rules 13a-18 and 15d-18 has been included as an exhibit to the
Annual Report. Any material instances of non-compliance are described in such
report and have been disclosed in the Annual Report.
R-1
In
giving
the certifications above, the [_________] has reasonably relied on information
provided to it by the following unaffiliated parties: [names of
servicer(s), master servicer, subservicer, depositor, trustee,
custodian(s)]
Date:
______________________________
[______________________]
as
[_______________]
By:__________________________________
Name:
Title:
R-2
EXHIBIT
S
FORM
OF
ADDITIONAL DISCLOSURE NOTIFICATION
**SEND
VIA FAX TO [FAX NUMBER] AND VIA EMAIL TO [EMAIL ADDRESS] AND VIA OVERNIGHT
MAIL
TO THE ADDRESSES IMMEDIATELY BELOW**
[__________]
[__________]
[__________]
Attention:
[__________]
with
copies to:
Banc
of
America Funding Corporation
000
Xxxxx
Xxxxx Xxxxxx
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attn: Senior
Vice President
Bank
of
America Legal Department
000
Xxxxx
Xxxxx Xxxxxx
101
X.
Xxxxx St., 30th Floor
NC1-002-29-01
Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000
Attention: Associate
General Counsel
RE: **Additional
Form [10-D][10-K][8-K] Disclosure** Required
Ladies
and
Gentlemen:
In
accordance with Section 3.22 of the Pooling and Servicing Agreement, dated
[__________], by and among Banc of America Funding Corporation, as depositor,
[__________], as trustee, [__________], as securities administrator and as
master servicer, the undersigned, as
[ ], hereby notifies
you that certain events have come to our attention that [will] [may] need to
be
disclosed on Form [10-D][10-K][8-K].
Description
of Additional
Form [10-D][10-K][8-K] Disclosure:
S-1
List
of any Attachments
hereto to be included in the Additional Form [10-D][10-K][8-K]
Disclosure:
Any
inquiries related to this notification should be directed to
[ ],
phone
number: [ ];
email
address: [ ].
|
|
[NAME
OF
PARTY],
|
as
[role]
By: _______________________________________
Name:
Title:
S-2
EXHIBIT
T
FORM
OF
TRANSFEROR CERTIFICATE FOR RESIDUAL CERTIFICATE
[__________]
[__________]
[__________]
Attention:
[__________]
Banc
of
America Funding Corporation
000
Xxxxx
Xxxxx Xxxxxx
Xxxxxxxxx,
Xxxxx
Xxxxxxxx 00000
|
|
Re:
|
Banc
of America Funding Corporation Mortgage Pass-Through
Certificates,
Series 20[__]-[_]
|
Ladies
and Gentlemen:
In
connection with our disposition of the BAFC Mortgage Pass-Through Certificates,
Series 20[__]-[_], Class 2-A-R Certificate (the “Residual Certificate”), we
certify that we have no knowledge that the transferee is not a Permitted
Transferee and we have no reason to believe that the statements made in the
transferee’s Affidavit Regarding Transfer of Residual Certificate are
false.
|
|
Very
truly yours,
|
|
|
[_____________________]
|
T-1
