EXHIBIT 4
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXX XX XXXXXXX FUNDING CORPORATION,
as Depositor,
XXXXX FARGO HOME MORTGAGE, INC.,
as Servicer,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Securities Administrator
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated April 30, 2003
-----------------------
Mortgage Pass-Through Certificates
Series 2003-1
================================================================================
TABLE OF CONTENTS
Page
----
PRELIMINARY STATEMENT.......................................................
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.................................................
Section 1.02 Interest Calculations.........................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans..................................
Section 2.02 Acceptance by the Trustee of the Mortgage Loans...............
Section 2.03 Representations, Warranties and Covenants of the Servicer.....
Section 2.04 Representations and Warranties of the Depositor as to the
Mortgage Loans...............................................
Section 2.05 Designation of Interests in the REMICs........................
Section 2.06 Designation of Start-up Day...................................
Section 2.07 REMIC Certificate Maturity Date...............................
Section 2.08 Execution and Delivery of Certificates........................
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans............................
Section 3.02 Subservicing; Enforcement of the Obligations of Servicer......
Section 3.03 Fidelity Bond; Errors and Omissions Insurance.................
Section 3.04 Access to Certain Documentation...............................
Section 3.05 Maintenance of Primary Mortgage Insurance Policy; Claims......
Section 3.06 Rights of the Depositor, the Securities Administrator and
the Trustee in Respect of the Servicer.......................
Section 3.07 Securities Administrator to Act as Servicer...................
Section 3.08 Collection of Mortgage Loan Payments; Servicer Custodial
Account and Certificate Account..............................
Section 3.09 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts..............................................
Section 3.10 Access to Certain Documentation and Information Regarding
the Mortgage Loans...........................................
Section 3.11 Permitted Withdrawals from the Servicer Custodial Account
and Certificate Account......................................
Section 3.12 Maintenance of Hazard Insurance...............................
Section 3.13 Enforcement of Due-On-Sale Clauses; Assumption Agreements.....
Section 3.14 Realization Upon Defaulted Mortgage Loans; REO Property.......
Section 3.15 Trustee to Cooperate; Release of Mortgage Files...............
Section 3.16 Documents, Records and Funds in Possession of the
Servicer to be Held for the Trustee..........................
Section 3.17 Servicing Compensation........................................
Section 3.18 Annual Statement as to Compliance.............................
Section 3.19 Annual Independent Public Accountants' Servicing
Statement; Financial Statements..............................
Section 3.20 Advances......................................................
Section 3.21 Modifications, Waivers, Amendments and Consents...............
Section 3.22 Reports to the Securities and Exchange Commission.............
Section 3.23 Buy-Down Account; Application of Buy-Down Funds...............
ARTICLE IV
SERVICER'S CERTIFICATE
Section 4.01 Servicer's Certificate........................................
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01 Distributions.................................................
Section 5.02 Priorities of Distributions...................................
Section 5.03 Allocation of Losses..........................................
Section 5.04 Statements to Certificateholders..............................
Section 5.05 Tax Returns and Reports to Certificateholders.................
Section 5.06 Tax Matters Person............................................
Section 5.07 Rights of a Tax Matters Person in Respect of the
Securities Administrator.....................................
Section 5.08 REMIC Related Covenants.......................................
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates..............................................
Section 6.02 Registration of Transfer and Exchange of Certificates.........
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates.............
Section 6.04 Persons Deemed Owners.........................................
ARTICLE VII
THE DEPOSITOR AND THE SERVICER
Section 7.01 Respective Liabilities of the Depositor and the Servicer.......
Section 7.02 Merger or Consolidation of the Depositor or the Servicer.......
Section 7.03 Limitation on Liability of the Depositor, the Servicer
and Others...................................................
Section 7.04 Depositor and Servicer Not to Resign..........................
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default.............................................
Section 8.02 Remedies of Trustee...........................................
Section 8.03 Directions by Certificateholders and Duties of Trustee
During Event of Default......................................
Section 8.04 Action upon Certain Failures of the Servicer and upon
Event of Default.............................................
Section 8.05 Securities Administrator to Act; Appointment of Successor.....
Section 8.06 Notification to Certificateholders............................
ARTICLE IX
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee and Securities Administrator................
Section 9.02 Certain Matters Affecting the Trustee and the Securities
Administrator................................................
Section 9.03 Neither Trustee nor Securities Administrator Liable for
Certificates or Mortgage Loans...............................
Section 9.04 Trustee and Securities Administrator May Own Certificates.....
Section 9.05 Eligibility Requirements for Trustee and the Securities
Administrator................................................
Section 9.06 Resignation and Removal of Trustee and the Securities
Administrator................................................
Section 9.07 Successor Trustee or Securities Administrator.................
Section 9.08 Merger or Consolidation of Trustee or Securities
Administrator................................................
Section 9.09 Appointment of Co-Trustee or Separate Trustee.................
Section 9.10 Authenticating Agents.........................................
Section 9.11 Securities Administrator's Fees and Expenses and
Trustee's Fees and Expenses..................................
Section 9.12 Appointment of Custodian......................................
Section 9.13 Paying Agents.................................................
Section 9.14 Limitation of Liability.......................................
Section 9.15 Trustee May Enforce Claims Without Possession of
Certificates.................................................
Section 9.16 Suits for Enforcement.........................................
Section 9.17 Waiver of Bond Requirement....................................
Section 9.18 Waiver of Inventory, Accounting and Appraisal Requirement.....
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase by the Depositor or Liquidation
of All Mortgage Loans........................................
Section 10.02 Additional Termination Requirements...........................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.....................................................
Section 11.02 Recordation of Agreement......................................
Section 11.03 Limitation on Rights of Certificateholders....................
Section 11.04 Governing Law.................................................
Section 11.05 Notices.......................................................
Section 11.06 Severability of Provisions....................................
Section 11.07 Certificates Nonassessable and Fully Paid.....................
Section 11.08 Access to List of Certificateholders..........................
Section 11.09 Recharacterization............................................
EXHIBITS
--------
Exhibit A-1 ......Form of Face of Class A-1 Certificate ...................
Exhibit A-PO......Form of Face of Class A-PO Certificate ..................
Exhibit A-R ......Form of Face of Class A-R Certificate ...................
Exhibit A-WIO.....Form of Face of Class A-WIO Certificate .................
Exhibit B-1 ......Form of Face of Class B-1 Certificate ...................
Exhibit B-2 ......Form of Face of Class B-2 Certificate ...................
Exhibit B-3 ......Form of Face of Class B-3 Certificate ...................
Exhibit B-4 ......Form of Face of Class B-4 Certificate ...................
Exhibit B-5 ......Form of Face of Class B-5 Certificate ...................
Exhibit B-6 ......Form of Face of Class B-6 Certificate ...................
Exhibit C ........Form of Reverse of all Certificates......................
Exhibit D ........Mortgage Loan Schedule...................................
Exhibit E ........Request for Release of Documents.........................
Exhibit F ........Form of Certification of Establishment of Account........
Exhibit G-1 ......Form of Transferor's Certificate.........................
Exhibit G-2A .....Form 1 of Transferee's Certificate.......................
Exhibit G-2B .....Form 2 of Transferee's Certificate.......................
Exhibit H.........Form of Transferee Representation Letter
for ERISA Restricted Certificates........................
Exhibit I.........Form of Affidavit Regarding Transfer of Residual
Certificates ............................................
Exhibit J ........Contents of Servicing File...............................
Exhibit K ........Form of Special Servicing Agreement......................
Exhibit L ........List of Recordation States...............................
Exhibit M ........Form of Initial Certification............................
Exhibit N ........Form of Final Certification..............................
Exhibit O ........Form of Certification....................................
Exhibit P ........Form of Trustee's Certification..........................
Exhibit Q ........Form of Servicer's Certification.........................
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated April 30, 2003 is hereby
executed by and among BANC OF AMERICA FUNDING CORPORATION, as depositor
(together with its permitted successors and assigns, the "Depositor"), XXXXX
FARGO HOME MORTGAGE, INC., as servicer (together with its permitted successors
and assigns, the "Servicer"), XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as securities administrator (together with its permitted successors and assigns,
the "Securities Administrator") and WACHOVIA BANK, NATIONAL ASSOCIATION, as
trustee (together with its permitted successors and assigns, the "Trustee").
W I T N E S S E T H T H A T:
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer, the Securities Administrator and the Trustee agree as
follows:
PRELIMINARY STATEMENT
In exchange for the Certificates, the Depositor hereby conveys the
Trust Estate to the Trustee to create the Trust. The Trust Estate for federal
income tax purposes will be treated as a real estate mortgage investment conduit
(a "REMIC"). The Class A Certificates (other than the Class A-R Certificate) and
the Class B Certificates are referred to collectively as the "Regular
Certificates" and shall constitute "regular interests" in the REMIC. The Class
A-R Certificate shall be the "residual interest" in the REMIC. The Certificates
will represent the entire beneficial ownership interest in the Trust. The
"latest possible maturity date" for federal income tax purposes of all interests
created hereby will be the REMIC Certificate Maturity Date.
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess thereof
in which the Classes of Certificates shall be issuable (except that one
Certificate of each Class of Certificates may be issued in any amount in excess
of the minimum denomination, but less than the integral multiple in excess of
the minimum):
===========================================================================
Initial Class Integral
Certificate Multiples
Balance or Pass-Through Minimum in Excess
Classes Notional Amount Rate Denomination of Minimum
---------------------------------------------------------------------------
Class A-1 $993,910,000.00 6.00% $1,000 $1
---------------------------------------------------------------------------
Class A-PO $345,868.00 (1) $25,000 $1
---------------------------------------------------------------------------
Class A-R $100.00 6.00% $100 N/A
---------------------------------------------------------------------------
Class A-WIO $1,013,444,166.00 (2) $10,000,000 $1
---------------------------------------------------------------------------
Class B-1 $13,264,000.00 6.00% $25,000 $1
---------------------------------------------------------------------------
Class B-2 $4,591,000.00 6.00% $25,000 $1
---------------------------------------------------------------------------
Class B-3 $3,571,000.00 6.00% $25,000 $1
---------------------------------------------------------------------------
Class B-4 $1,531,000.00 6.00% $25,000 $1
---------------------------------------------------------------------------
Class B-5 $1,530,000.00 6.00% $25,000 $1
---------------------------------------------------------------------------
Class B-6 $1,530,828.00 6.00% $25,000 $1
---------------------------------------------------------------------------
---------------
(1) The Class A-PO Certificates will be Principal Only Certificates and will not
bear interest.
(2) Interest will accrue on the Class A-WIO Notional Amount as of any
Distribution Date at a per annum rate equal to (i) the weighted average of the
Net Mortgage Interest Rates of the Premium Mortgage Loans (based on the Stated
Principal Balance of the Premium Mortgage Loans on the Due Date in the month
preceding the month of such Distribution Date) minus (ii) 6.00%.
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the meanings specified in this Article:
1933 Act: The Securities Act of 1933, as amended.
Accrued Certificate Interest: For any Distribution Date and each
interest-bearing Class, one month's interest accrued during the related Interest
Accrual Period at the applicable Pass-Through Rate on the applicable Class
Certificate Balance or Notional Amount, as applicable.
Adjusted Pool Amount: With respect to any Distribution Date, the
Cut-Off Date Pool Principal Balance of the Mortgage Loans minus the sum of (i)
all amounts in respect of principal received in respect of the Mortgage Loans
(including, without limitation, amounts received as Monthly Payments, Periodic
Advances, Principal Prepayments, Liquidation Proceeds and Substitution
Adjustment Amounts) and distributed to Holders of 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 from the Cut-Off Date through the end of the month preceding
such Distribution Date.
Adjusted Pool Amount (PO Portion): With respect to any Distribution
Date, the sum of the amounts, calculated as follows, with respect to all
Outstanding Mortgage Loans: the product of (i) the PO Percentage for each such
Mortgage Loan and (ii) the remainder of (A) the Cut-Off Date Principal Balance
of such Mortgage Loan minus (B) the sum of (x) all amounts in respect of
principal received in respect of such Mortgage Loan (including, without
limitation, amounts received as Monthly Payments, Periodic Advances, Principal
Prepayments, Liquidation Proceeds and Substitution Adjustment Amounts) and
distributed to Holders of the Certificates on such Distribution Date and all
prior Distribution Dates and (y) the principal portion of any Realized Loss
(other than a Debt Service Reduction) incurred on such Mortgage Loan from the
Cut-Off Date through the end of the month preceding such Distribution Date.
Advance: A Periodic Advance or a Servicing Advance.
Agreement: This Pooling and Servicing Agreement together with all
amendments hereof and supplements hereto.
Amount Held for Future Distribution: As to any Distribution Date,
the total of the amounts held in the Servicer Custodial Account at the close of
business on the preceding Determination Date on account of (i) Principal
Prepayments and Liquidation Proceeds received or made in the month of such
Distribution Date and (ii) payments which represent receipt of Monthly Payments
in respect of a Due Date or Due Dates subsequent to the related Due Date.
Appraised Value: With respect to any Mortgaged Property, either (i)
the lesser of (a) the appraised value determined in an appraisal obtained by the
originator at origination of such Mortgage Loan and (b) the sales price for such
property, except that, in the case of Mortgage Loans the proceeds of which were
used to refinance an existing mortgage loan, the Appraised Value of the related
Mortgaged Property is the appraised value thereof determined in an appraisal
obtained at the time of refinancing, or (ii) the appraised value determined in
an appraisal made at the request of a Mortgagor subsequent to origination in
order to eliminate the Mortgagor's obligation to keep a Primary Mortgage
Insurance Policy in force.
Assignment of Mortgage: An individual assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form, sufficient under
the laws of the jurisdiction wherein the related Mortgaged Property is located
to give record notice of the sale of the Mortgage.
Authenticating Agents: As defined in Section 9.10.
Book-Entry Certificate: All Classes of Certificates other than the
Physical Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii)
a day on which banking institutions in the State of North Carolina, the State of
New York, the State of Kentucky, the State of Minnesota, the state in which the
servicing offices of the Servicer is located or the state in which the Corporate
Trust Office is located are required or authorized by law or executive order to
be closed.
Buy-Down Account: The separate Eligible Account or Accounts created
and maintained by the Servicer pursuant to Section 3.24.
Buy-Down Agreement: An agreement governing the application of
Buy-Down Funds with respect to a Buy-Down Mortgage Loan.
Buy-Down Funds: Money advanced by a builder, seller or other
interested party to reduce a Mortgagor's monthly payment during the initial
years of a Buy-Down Mortgage Loan.
Buy-Down Mortgage Loan: Any Mortgage Loan in respect of which,
pursuant to a Buy-Down Agreement, the monthly interest payments made by the
related Mortgagor will be less than the scheduled monthly interest payments on
such Mortgage Loan, with the resulting difference in interest payments being
provided from Buy-Down Funds.
Calculated Principal Distribution: As defined in Section 5.03(d).
Certificate: Any of the Banc of America Funding Corporation Mortgage
Pass-Through Certificates, Series 2003-1 that are issued pursuant to this
Agreement.
Certificate Account: The Eligible Account created and maintained by
the Securities Administrator pursuant to Section 3.08(c) in the name of the
Securities Administrator for the benefit of the Certificateholders and
designated "Xxxxx Fargo Bank Minnesota, National Association, as Securities
Administrator for Wachovia Bank, National Association, as Trustee, in trust for
registered holders of Banc of America Funding Corporation Mortgage Pass-Through
Certificates, Series 2003-1." Funds in the Certificate Account shall be held in
trust for the Certificateholders for the uses and purposes set forth in this
Agreement.
Certificate Balance: With respect to any Certificate at any date,
the maximum dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the product of the Percentage
Interest of such Certificate and the Class Certificate Balance of the Class of
Certificates of which such Certificate is a part.
Certificate Custodian: Initially, Xxxxx Fargo Bank Minnesota,
National Association; 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 Servicer or any affiliate thereof shall be deemed not
to be outstanding and the Percentage Interest and Voting Rights evidenced
thereby shall not be taken into account in determining whether the requisite
amount of Percentage Interests or Voting Rights, as the case may be, necessary
to effect any such consent has been obtained, unless such entity is the
registered owner of the entire Class of Certificates, provided that the
Securities Administrator shall not be responsible for knowing that any
Certificate is registered in the name of an affiliate of the Depositor unless
one of its Responsible Officers has actual knowledge.
Certification: As defined in Section 3.22.
Class: As to the Certificates, the Class A-1, Class A-PO, Class A-R,
Class A-WIO, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6
Certificates, as the case may be.
Class A Certificates: The Class A-1, Class A-PO, Class A-R and Class
A-WIO Certificates.
Class A-PO Deferred Amount: As to any Distribution Date prior to the
Senior Credit Support Depletion Date, the aggregate of the applicable PO
Percentage of each Realized Loss to be allocated to the Class A-PO Certificates
on such Distribution Date or previously allocated to the Class A-PO Certificates
and not yet paid to the Holders of the Class A-PO Certificates pursuant to
Section 5.02(a)(iv) and the amount (without duplication) of any reduction in the
Class Certificate Balance of the Class A-PO Certificates pursuant to Section
5.03(b).
Class A-WIO Notional Amount: As to any Distribution Date and the
Class A-WIO Certificates, the aggregate Stated Principal Balances of the Premium
Mortgage Loans on the Due Date in the month preceding the month of such
Distribution.
Class B Certificates: The Class B-1, Class B-2, Class B-3, Class
B-4, Class B-5 and Class B-6 Certificates.
Class Certificate Balance: With respect to any Class (other than the
Class A-WIO Certificates) and any date of determination, the Initial Class
Certificate Balance of such Class minus the sum of (i) all distributions of
principal made with respect thereto, (ii) all Realized Losses allocated thereto
pursuant to Section 5.03(a) and (iii) all other reductions in Class Certificate
Balance previously allocated thereto pursuant to Section 5.03(b). The Class
A-WIO Certificates are Interest-Only Certificates and have no Class Certificate
Balance.
Class Interest Shortfall: For any Distribution Date and each
interest-bearing Class, the amount by which Accrued Certificate Interest for
such Class (as reduced pursuant to Section 5.02(c)) exceeds the amount of
interest actually distributed on such Class on such Distribution Date pursuant
to clause (i) of the definition of "Interest Distribution Amount."
Class Unpaid Interest Shortfall: As to any Distribution Date and
each interest-bearing Class, the amount by which the aggregate Class Interest
Shortfalls for such Class on prior Distribution Dates exceeds the amount of
interest actually distributed on such Class on such prior Distribution Dates
pursuant to clause (ii) of the definition of "Interest Distribution Amount."
Closing Date: April 30, 2003.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest: As defined in Section 3.17.
Co-op Shares: Shares issued by private non-profit housing
corporations.
Corporate Trust Office: With respect to the Trustee, the principal
office of the Trustee at which at any particular time its certificate transfer
services are conducted, which office at the date of the execution of this
instrument is located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx,
00000-0000 Attention: Structured Finance Trust Services, BAFC, Series 2003-1, 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
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 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Services - BAFC 2003-1, and for certificate transfer purposes is located at
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention:
Corporate Trust Services - BAFC 2003-1, 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 Servicer.
Custodian: Initially, the Trustee, and thereafter the Custodian, if
any, hereafter appointed by the Trustee pursuant to Section 9.12. The Custodian
may (but need not) be the Trustee or any Person directly or indirectly
controlling or controlled by or under common control of either of them. Neither
the Servicer nor the Depositor, nor any Person directly or indirectly
controlling or controlled by or under common control with any such Person may be
appointed Custodian.
Customary Servicing Procedures: With respect to the Servicer,
procedures (including collection procedures) that the Servicer customarily
employs and exercises in servicing and administering mortgage loans for its own
account and which are in accordance with accepted mortgage servicing practices
of prudent lending institutions servicing mortgage loans of the same type as the
Mortgage Loans in the jurisdictions in which the related Mortgaged Properties
are located.
Cut-Off Date: April 1, 2003.
Cut-Off Date Pool Principal Balance: The aggregate of the Cut-Off
Date Principal Balances of the Mortgage Loans which is $1,020,273,796.86.
Cut-Off Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof as of the close of business on the Cut-Off Date,
reduced by all installments of principal due on or prior thereto whether or not
paid.
Debt Service Reduction: As to any Mortgage Loan and any
Determination Date, the excess of (i) the Monthly Payment due on the related Due
Date under the terms of such Mortgage Loan over (ii) the amount of the monthly
payment of principal and/or interest required to be paid with respect to such
Due Date by the Mortgagor as established by a court of competent jurisdiction
(pursuant to an order which has become final and nonappealable) as a result of a
proceeding initiated by or against the related Mortgagor under the Bankruptcy
Code, as amended from time to time (11 U.S.C.); provided that no such excess
shall be considered a Debt Service Reduction so long as (a) the Servicer is
pursuing an appeal of the court order giving rise to any such modification and
(b)(1) such Mortgage Loan is not in default with respect to payment due
thereunder in accordance with the terms of such Mortgage Loan as in effect on
the Cut-Off Date or (2) Monthly Payments are being advanced by the Servicer in
accordance with the terms of such Mortgage Loan as in effect on the Cut-Off
Date.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that became
the subject of a Debt Service Reduction.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
cured, repurchased or substituted for pursuant to Sections 2.02.
Deficient Valuation: As to any Mortgage Loan and any Determination
Date, the excess of (i) the then outstanding indebtedness under such Mortgage
Loan over (ii) the secured valuation thereof established by a court of competent
jurisdiction (pursuant to an order which has become final and nonappealable) as
a result of a proceeding initiated by or against the related Mortgagor under the
Bankruptcy Code, as amended from time to time (11 U.S.C.), pursuant to which
such Mortgagor retained such Mortgaged Property; provided that no such excess
shall be considered a Deficient Valuation so long as (a) the Servicer is
pursuing an appeal of the court order giving rise to any such modification and
(b)(1) such Mortgage Loan is not in default with respect to payments due
thereunder in accordance with the terms of such Mortgage Loan as in effect on
the Cut-Off Date or (2) Monthly Payments are being advanced by the Servicer in
accordance with the terms of such Mortgage Loan as in effect on the Cut-Off
Date.
Deficient Valuation Mortgage Loan: Any Mortgage Loan that became the
subject of a Deficient Valuation.
Definitive Certificates: As defined in Section 6.02(c)(iii).
Depositor: Banc of America Funding Corporation, a Delaware
corporation, or its successor in interest, as depositor of the Trust Estate.
Depository: The Depository Trust Company, the nominee of which is
Cede & Co., as the registered Holder of the Book-Entry Certificates or any
successor thereto appointed in accordance with this Agreement. The Depository
shall at all times be a "clearing corporation" as defined in Section 8-102(3) of
the Uniform Commercial Code of the State of New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date, the 16th day of the
month of the related Distribution Date or, if such 16th day is not a Business
Day, the Business Day immediately preceding such 16th day.
Discount Mortgage Loan: Any Mortgage Loan with a Net Mortgage
Interest Rate that is less than 6.00% per annum.
Distribution Date: The 20th day of each month beginning in May 2003
(or, if such day is not a Business Day, the next Business Day).
Due Date: As to any Distribution Date and each Mortgage Loan, the
first day in the calendar month of such Distribution Date.
Eligible Account: Any of (i) an account or accounts maintained with
(a) Xxxxx Fargo Bank Minnesota, National Association or (b) a federal or state
chartered depository institution or trust company the short-term unsecured debt
obligations of which (or, in the case of a depository institution or trust
company that is the principal subsidiary of a holding company, the debt
obligations of such holding company) have the highest short-term ratings of each
Rating Agency at the time any amounts are held on deposit therein, or (ii) an
account or accounts in a depository institution or trust company in which such
accounts are insured by the FDIC (to the limits established by the FDIC) and the
uninsured deposits in which accounts are otherwise secured such that, as
evidenced by an Opinion of Counsel delivered to the Trustee, the Securities
Administrator and to each Rating Agency, the Certificateholders have a claim
with respect to the funds in such account or a perfected first priority security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution or trust company in which
such account is maintained, or (iii) a trust account or accounts maintained with
the trust department of a federal or state chartered depository institution or
trust company (including the Trustee and the Securities Administrator), acting
in its fiduciary capacity or (iv) any other account acceptable to each Rating
Agency. Eligible Accounts may bear interest and may include, if otherwise
qualified under this definition, accounts maintained with the Trustee or the
Securities Administrator.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificates: Any Class B-4, Class B-5 or Class B-6
Certificate.
Escrow Account: As defined in Section 3.09.
Escrow Payments: The amounts constituting taxes, assessments,
Primary Mortgage Insurance Policy premiums, fire and hazard insurance premiums
and other payments as may be required to be escrowed by the Mortgagor with the
mortgagee pursuant to the terms of any Mortgage Note or Mortgage.
Event of Default: As defined in Section 8.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any Liquidation Proceeds of such Mortgage
Loan received in the calendar month in which such Mortgage Loan became a
Liquidated Mortgage Loan, net of any amounts previously reimbursed to the
Servicer as Nonrecoverable Advance(s) with respect to such Mortgage Loan
pursuant to Section 3.11(a)(iii), exceeds (i) the unpaid principal balance of
such Liquidated Mortgage Loan as of the Due Date in the month in which such
Mortgage Loan became a Liquidated Mortgage Loan plus (ii) accrued interest at
the Mortgage Interest Rate from the Due Date as to which interest was last paid
or for which a Periodic Advance was made (and not reimbursed) up to the Due Date
applicable to the Distribution Date immediately following the calendar month
during which such liquidation occurred.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
Final Distribution Date: The Distribution Date on which the final
distribution in respect of the Certificates will be made pursuant to Section
10.01.
Financial Market Service: Bloomberg Financial Service and any other
financial information provider designated by the Depositor by written notice to
the Securities Administrator.
FIRREA: The Financial Institutions Reform, Recovery and Enforcement
Act of 1989, as amended.
FNMA: Xxxxxx Mae, or any successor thereto.
Form 10-K: As defined in Section 3.22.
Fractional Interest: As defined in Section 5.02(d).
Holder: A Certificateholder.
Independent: When used with respect to any specified Person means
such a Person who (i) is in fact independent of the Depositor and the Servicer,
(ii) does not have any direct financial interest or any material indirect
financial interest in the Depositor or the Servicer or in an affiliate of either
of them, and (iii) is not connected with the Depositor or the Servicer as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
Initial Class Certificate Balance: As to each Class of Certificates
(other than the Class A-WIO Certificates), the Class Certificate Balance set
forth in the Preliminary Statement. The Class A-WIO Certificates are
Interest-Only Certificates and have no Initial Class Certificate Balance.
Initial Notional Amount: As to each Class of Interest-Only
Certificates, the Notional Amount set forth in the Preliminary Statement.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Estate, any related insurance policy, including all riders and
endorsements thereto in effect, including any replacement policy or policies for
any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such Insurance
Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any
other insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: As to any Distribution Date and each Class
of Certificates (other than the Class A-PO Certificates), the period from and
including the first day of the calendar month preceding the calendar month of
such Distribution Date to but not including the first day of the calendar month
of such Distribution Date.
Interest Distribution Amount: For any Distribution Date and each
interest-bearing Class, the sum of (i) the Accrued Certificate Interest, subject
to reduction pursuant to Section 5.02(c) and (ii) any Class Unpaid Interest
Shortfall for such Class.
Interest-Only Certificates: Any Class of Certificates entitled to
distributions of interest, but no distributions of principal. The Class A-WIO
Certificates are the only Classes of Interest-Only Certificates.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) that was liquidated in the
calendar month preceding the month of such Distribution Date and as to which the
Servicer has certified (in accordance with this Agreement) that it has received
all proceeds it expects to receive in connection with the liquidation of such
Mortgage Loan including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or otherwise or
amounts received in connection with any condemnation or partial release of a
Mortgaged Property and any other proceeds received in connection with an REO
Property, less the sum of related unreimbursed Servicing Fees and Advances.
Loan-to-Value Ratio: With respect to any Mortgage Loan and any date
of determination, the fraction, expressed as a percentage, the numerator of
which is the outstanding principal balance of the related Mortgage Loan at the
date of determination and the denominator of which is the Appraised Value of the
related Mortgaged Property.
MERS: As defined in Section 2.01(b)(iii).
Monthly Form 8-K: As defined in Section 3.22.
Monthly Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan.
Moody's: Xxxxx'x Investors Service, Inc., or any successor thereto.
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on a Mortgaged Property securing a Mortgage Note or creating a first
lien on a leasehold interest.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: As to any Mortgage Loan, the per annum rate
of interest at which interest accrues on the principal balance of such Mortgage
Loan in accordance with the terms of the related Mortgage Note.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated April 30, 2003, between Bank of America, N.A., as seller, and
the Depositor, as purchaser.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to
time amended by the Servicer to reflect the addition of Substitute Mortgage
Loans and the deletion of Defective Mortgage Loans pursuant to the provisions of
this Agreement) transferred to the Trustee as part of the Trust Estate and from
time to time subject to this Agreement, attached hereto as Exhibit D, setting
forth the following information with respect to each Mortgage Loan: (i) the
Mortgage Loan identifying number; (ii) a code indicating whether the Mortgaged
Property is owner-occupied; (iii) the property type for each Mortgaged Property;
(iv) the original months to maturity or the remaining months to maturity from
the Cut-Off Date; (v) the Loan-to-Value Ratio at origination; (vi) the Mortgage
Interest Rate; (vii) the date on which the first Monthly Payment was due on the
Mortgage Loan, and, if such date is not the Due Date currently in effect, such
Due Date; (viii) the stated maturity date; (ix) the amount of the Monthly
Payment as of the Cut-Off Date; (x) the paid-through date; (xi) the original
principal amount of the Mortgage Loan; (xii) the principal balance of the
Mortgage Loan as of the close of business on the Cut-Off Date, after application
of payments of principal due on or before the Cut-Off Date, whether or not
collected, and after deduction of any payments collected of scheduled principal
due after the Cut-Off Date; (xiii) a code indicating the purpose of the Mortgage
Loan; (xiv) a code indicating the documentation style; and (xv) the Appraised
Value. With respect to the Mortgage Loans in the aggregate, the Mortgage Loan
Schedule shall set forth the following information, as of the Cut-Off Date: (i)
the number of Mortgage Loans; (ii) the current aggregate outstanding principal
balance of the Mortgage Loans; (iii) the weighted average Mortgage Rate of the
Mortgage Loans; and (iv) the weighted average months to maturity of the Mortgage
Loans.
Mortgage Loans: Such of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 as from time to time are held as a part
of the Trust Estate (including any Substitute Mortgage Loans and REO Property),
the Mortgage Loans originally so held being identified in the Mortgage Loan
Schedule.
Mortgage Note: The originally executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan,
together with all riders thereto and amendments thereof.
Mortgaged Property: The underlying property securing a Mortgage
Loan, which may include Co-op Shares or residential long-term leases.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Interest Rate: As to any Mortgage Loan and Distribution
Date, such Mortgage Loan's Mortgage Interest Rate thereon on the first day of
the month preceding the month of the related Distribution Date reduced by the
Servicing Fee Rate.
Non-PO Percentage: As to any Discount Mortgage Loan, a fraction
(expressed as a percentage), the numerator of which is the Net Mortgage Interest
Rate of such Discount Mortgage Loan and the denominator of which is 6.00%. As to
any Mortgage Loan that is not a Discount Mortgage Loan, 100%.
Non-PO Principal Amount: As to any Distribution Date, the sum of the
applicable Non-PO Percentage of (a) the principal portion of each Monthly
Payment due on each Mortgage Loan on the related Due Date, (b) the Stated
Principal Balance, as of the date of repurchase, of each Mortgage Loan that was
repurchased by the Depositor pursuant to this Agreement as of such Distribution
Date, (c) any Substitution Adjustment Amount in connection with a Defective
Mortgage Loan received with respect to such Distribution Date, (d) any
Liquidation Proceeds allocable to recoveries of principal of Mortgage Loans that
are not yet Liquidated Mortgage Loans received during the calendar month
preceding the month of such Distribution Date, (e) with respect to each Mortgage
Loan that became a Liquidated Mortgage Loan during the calendar month preceding
the month of such Distribution Date, the amount of Liquidation Proceeds
allocable to principal received during the calendar month preceding the month of
such Distribution Date and (f) all Principal Prepayments received during the
calendar month preceding the month of such Distribution Date.
Non-Supported Interest Shortfalls: As to any Distribution Date, the
amount, if any, by which the aggregate of Prepayment Interest Shortfalls exceeds
Compensating Interest for such Distribution Date.
Non-U.S. Person: A Person other than a U.S. Person.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made in respect of a Mortgage Loan which has not been previously
reimbursed and which, in the good faith judgment of the Servicer, will not or,
in the case of a proposed Advance, would not be ultimately recoverable from the
related Mortgagor, related Liquidation Proceeds, or other recoveries in respect
of the related Mortgage Loan.
Notional Amount: With respect to the Class A-WIO Certificates and
any date of determination, the Class A-WIO Notional Amount.
Offered Certificates: The Class A, Class B-1, Class B-2 and Class
B-3 Certificates.
Officer's Certificate: A certificate signed by the Chairman of the
Board, Vice Chairman of the Board, President or a Vice President and by the
Treasurer, the Secretary or one of the Assistant Treasurers or Assistant
Secretaries, or any other duly authorized officer of the Depositor or the
Servicer, as the case may be, and delivered to the Trustee or the Securities
Administrator, as the case may be.
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 Servicer, except that
any opinion of counsel relating to the qualification of the Trust Estate as a
REMIC or compliance with the REMIC Provisions must be an opinion of Independent
counsel.
Original Fractional Interest: With respect to each of the following
Classes of Subordinate Certificates, the corresponding percentage described
below, as of the Closing Date:
Class B-1 1.25%
Class B-2 0.80%
Class B-3 0.45%
Class B-4 0.30%
Class B-5 0.15%
Class B-6 0.00%
Original Subordinate Certificate Balance: $26,017,828.00.
OTS: The Office of Thrift Supervision.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan which
was not the subject of a Principal Prepayment in Full prior to such Due Date,
which did not become a Liquidated Mortgage Loan prior to such Due Date and which
was not purchased from the Trust prior to such Due Date pursuant to Sections
2.02.
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: As to each Class of interest-bearing
Certificates, the per annum rate set forth in the Preliminary Statement.
Paying Agent: As defined in Section 9.13.
Percentage Interest: As to any Certificate, the percentage obtained
by dividing the initial Certificate Balance of such Certificate (or the initial
notional amount for a Class A-WIO Certificate) by the Initial Class Certificate
Balance or Initial Notional Amount, as applicable, of the Class of which such
Certificate is a part.
Periodic Advance: The payment required to be made by the Servicer
with respect to any Distribution Date pursuant to Section 3.20, the amount of
any such payment being equal to the aggregate of Monthly Payments (net of the
Servicing Fee) on the Mortgage Loans (including any REO Property) that were due
on the related Due Date and not received as of the close of business on the
related Determination Date, less the aggregate amount of any such delinquent
payments that the Servicer has determined would constitute a Nonrecoverable
Advance if advanced.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by the
United States, FHLMC, FNMA or any agency or instrumentality of the United
States when such obligations are backed by the full faith and credit of
the United States; provided that such obligations of FHLMC or FNMA shall
be limited to senior debt obligations and mortgage participation
certificates other than investments in mortgage-backed or mortgage
participation securities with yields evidencing extreme sensitivity to the
rate of principal payments on the underlying mortgages, which shall not
constitute Permitted Investments hereunder;
(ii) repurchase agreements on obligations specified in clause (i)
maturing not more than one month from the date of acquisition thereof with
a corporation incorporated under the laws of the United States or any
state thereof rated not lower than "A-1" by S&P and "P-1" by Moody's;
(iii) federal funds, certificates of deposit, demand deposits, time
deposits and bankers' acceptances (which shall each have an original
maturity of not more than 90 days and, in the case of bankers'
acceptances, shall in no event have an original maturity of more than 365
days or a remaining maturity of more than 30 days) denominated in United
States dollars of any U.S. depository institution or trust company
incorporated under the laws of the United States or any state thereof,
rated not lower than "A-1" by S&P and "P-1" by Moody's;
(iv) commercial paper (having original maturities of not more than
365 days) of any corporation incorporated under the laws of the United
States or any state thereof which is rated not lower than "A-1" by S&P and
"P-1" by Moody's;
(v) investments in money market funds (including funds of the
Trustee, the Securities Administrator or their affiliates, or funds for
which an affiliate of the Trustee or the Securities Administrator acts as
advisor, as well as funds for which the Trustee and its affiliates or the
Securities Administrator and its affiliates may receive compensation)
rated either "AAAm" or "AAAm G" by S&P and "Aaa" by Moody's or otherwise
approved in writing by each Rating Agency; and
(vi) other obligations or securities that are acceptable to each
Rating Agency and, as evidenced by an Opinion of Counsel obtained by the
Servicer, will not affect the qualification of the Trust Estate as a
REMIC;
provided, however, that no instrument shall be a Permitted Investment if it
represents either (a) the right to receive only interest payments with respect
to the underlying debt instrument or (b) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest with respect to such instrument provide a yield to
maturity greater than 120% of the yield to maturity at par of such underlying
obligations.
Permitted Transferee: Any Person other than (i) the United States,
or any State or any political subdivision thereof, or any agency or
instrumentality of any of the foregoing, (ii) a foreign government,
international organization or any agency or instrumentality of either of the
foregoing, (iii) an organization which is exempt from tax imposed by Chapter 1
of the Code (including the tax imposed by Section 511 of the Code on unrelated
business taxable income) (except certain farmers' cooperatives described in Code
Section 521), (iv) rural electric and telephone cooperatives described in Code
Section 1381(a)(2)(C), (v) a Person with respect to whom the income on a
Residual Certificate is allocable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of such Person or
any other Person, and (vi) any other Person so designated by the Servicer based
on an Opinion of Counsel to the effect that any transfer to such Person may
cause the Trust or any other Holder of a Residual Certificate to incur tax
liability that would not be imposed other than on account of such transfer. The
terms "United States," "State" and "international organization" shall have the
meanings set forth in Code Section 7701 or successor provisions.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Physical Certificates: The Class A-R, Class B-4, Class B-5 and Class
B-6 Certificates.
Plan: As defined in Section 6.02(e).
PO Percentage: As to any Discount Mortgage Loan, 100% minus the
Non-PO Percentage for such Mortgage Loan. As to any Mortgage Loan that is not a
Discount Mortgage Loan, 0%.
PO Principal Amount: As to any Distribution Date, the sum of the
applicable PO Percentage of (a) the principal portion of each Monthly Payment
due on each Mortgage Loan on the related Due Date, (b) the Stated Principal
Balance, as of the date of repurchase, of each Mortgage Loan that was
repurchased by the Depositor pursuant to this Agreement as of such Distribution
Date, (c) any Substitution Adjustment Amount in connection with any Defective
Mortgage Loan received with respect to such Distribution Date, (d) any
Liquidation Proceeds allocable to recoveries of principal of Mortgage Loans that
are not yet Liquidated Mortgage Loans received during the calendar month
preceding the month of such Distribution Date, (e) with respect to each Mortgage
Loan that became a Liquidated Mortgage Loan during the calendar month preceding
the month of such Distribution Date, the amount of Liquidation Proceeds
allocable to principal received with respect to such Mortgage Loan during the
calendar month preceding the month of such Distribution Date and (f) all
Principal Prepayments received during the calendar month preceding the month of
such Distribution Date.
Pool Distribution Amount: As to any Distribution Date, the excess of
(a) the sum of (i) the aggregate of (A) the interest portion of any Monthly
Payment (net of the Servicing Fee) and the principal portion of any Monthly
Payment 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 and payments of Compensating Interest made by the Servicer in
respect of such Distribution Date deposited to the Servicer Custodial Account
pursuant to Section 3.08(b)(vii); (ii) all Liquidation Proceeds received during
the preceding calendar month and deposited to the Servicer Custodial Account
pursuant to Section 3.08(b)(iii); (iii) all Principal Prepayments received
during the month preceding the month of such Distribution Date and deposited to
the Servicer Custodial Account pursuant to Section 3.08(b)(i) during such
period; (iv) in connection with Defective Mortgage Loans, as applicable, the
aggregate of the Repurchase Prices and Substitution Adjustment Amounts deposited
on the related Remittance Date pursuant to Section 3.08(b)(vi); (v) any other
amounts in the Servicer Custodial Account deposited therein pursuant to Sections
3.08(b)(iv), (v) and (ix) in respect of such Distribution Date and (vi) any
Reimbursement Amount required to be included pursuant to Section 5.02(e); over
(b) any (i) amounts permitted to be withdrawn from the Servicer Custodial
Account pursuant to clauses (i) through (vii), inclusive, of Section 3.11(a) and
(ii) amounts permitted to be withdrawn from the Certificate Account pursuant to
clauses (i) and (ii) of Section 3.11(b).
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate Stated Principal Balances of all Mortgage Loans that were Outstanding
Mortgage Loans immediately following the Due Date in the month preceding the
month in which such Distribution Date occurs.
Premium Mortgage Loan: Any Mortgage Loan with a Net Mortgage
Interest Rate that is equal to or more than 6.00% per annum.
Prepayment Interest Shortfall: As to any Distribution Date and each
Mortgage Loan subject to a Principal Prepayment received during the calendar
month preceding such Distribution Date, the amount, if any, by which one month's
interest at the related Mortgage Interest Rate (net of the Servicing Fee) on
such Principal Prepayment exceeds the amount of interest paid in connection with
such Principal Prepayment.
Primary Mortgage Insurance Policy: Each policy of primary mortgage
guaranty insurance or any replacement policy therefor with respect to any
Mortgage Loan, in each case issued by an insurer acceptable to FNMA or FHLMC.
Principal-Only Certificates: Any Class of Certificates entitled to
distributions of principal, but to no distributions of interest. The Class A-PO
Certificates are the only Principal-Only Certificates.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan (other than Liquidation Proceeds) which is received in advance
of its scheduled Due Date and is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment of the entire
principal balance of a Mortgage Loan.
Private Certificates: The Class B-4, Class B-5 and Class B-6
Certificates.
Pro Rata Share: As to any Distribution Date and any Class of
Subordinate Certificates that is not a Restricted Class, the portion of the
Subordinate Principal Distribution Amount allocable to such Class, equal to the
product of the Subordinate Principal Distribution Amount for such Distribution
Date and a fraction, the numerator of which is the related Class Certificate
Balance thereof and the denominator of which is the aggregate Class Certificate
Balance of the Subordinate Certificates that are not Restricted Classes. The Pro
Rata Share of a Restricted Class shall be 0%.
Qualified Appraiser: An appraiser of a Mortgaged Property duly
appointed by the originator of the related Mortgage Loan, who had no interest,
direct or indirect, in such Mortgaged Property or in any loan made on the
security thereof, whose compensation is not affected by the approval or
disapproval of the related Mortgage Loan and who met the minimum qualifications
of FNMA or FHLMC.
Rating Agency: Each of Xxxxx'x and S&P. If either such organization
or a successor is no longer in existence, "Rating Agency" shall be such
nationally recognized statistical rating organization, or other comparable
Person, as is designated by the Depositor, notice of which designation shall be
given to the Trustee 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 Liquidation Proceeds, if any, received during
the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Net Mortgage Interest Rate and to principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan that has become the
subject of a Deficient Valuation, if the principal amount due under the related
Mortgage Note has been reduced, the difference between the principal balance of
the Mortgage Loan outstanding immediately prior to such Deficient Valuation and
the principal balance of the Mortgage Loan as reduced by the Deficient
Valuation. With respect to each Mortgage Loan that has become the subject of a
Debt Service Reduction and any Distribution Date, the amount, if any, by which
the principal portion of the related Monthly Payment has been reduced.
Record Date: The last day of the month (or, if such day is not a
Business Day, the preceding Business Day) preceding the month of the related
Distribution Date.
Refinance Mortgage Loan: Any Mortgage Loan the proceeds of which
were not used to purchase the related Mortgaged Property.
Regular Certificates: As defined in the Preliminary Statement
hereto.
Reimbursement Amount: As defined in Section 2.02.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
Relief Act Reduction: With respect to any Distribution Date, for any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act or comparable state legislation, the amount,
if any, by which (i) interest collectible on such Mortgage Loan for the most
recently ended calendar month is less than (ii) interest accrued pursuant to the
terms of the Mortgage Note on the same principal amount and for the same period
as the interest collectible on such Mortgage Loan for the most recently ended
calendar month.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code. "The REMIC" means the REMIC constituted by
the Trust Estate.
REMIC Certificate Maturity Date: The "latest possible maturity date"
of the Regular Certificates as that term is defined in Section 2.07.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Section 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time, as well as provisions of applicable state laws.
Remittance Date: As to any Distribution Date, by 2:00 p.m. Eastern
time on the second Business Day immediately preceding such Distribution Date.
REO Disposition Period: As defined in Section 3.14.
REO Proceeds: Proceeds, net of any related expenses of the Servicer,
received in respect of any REO Property (including, without limitation, proceeds
from the rental of the related Mortgaged Property) which are received prior to
the final liquidation of such Mortgaged Property.
REO Property: A Mortgaged Property acquired by the Servicer on
behalf of the Trust through foreclosure or deed-in-lieu of foreclosure in
connection with a defaulted Mortgage Loan.
Repurchase Price: As to any Defective Mortgage Loan repurchased on
any date pursuant to Sections 2.02, an amount equal to the sum of (i) the unpaid
principal balance thereof and (ii) the unpaid accrued interest thereon at the
applicable Mortgage Interest Rate from the Due Date to which interest was last
paid by the Mortgagor to the first day of the month following the month in which
such Mortgage Loan became eligible to be repurchased.
Request for Release: The Request for Release submitted by the
Servicer to the Trustee or the Custodian on behalf of the Trustee, substantially
in the form of Exhibit E.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to time under this
Agreement in respect of such Mortgage Loan.
Residual Certificate: The Class 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 responsibility for the administration of this Agreement.
Restricted Classes: As defined in Section 5.02(d).
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor thereto.
Securities Administrator: Xxxxx Fargo Bank Minnesota, National
Association, and its successors-in-interest and, if a successor securities
administrator is appointed hereunder, such successor, as securities
administrator.
Seller: Bank of America, N.A., a national banking association, as
seller of the Mortgage Loans under the Mortgage Loan Purchase Agreement.
Senior Certificates: The Class A Certificates.
Senior Credit Support Depletion Date: The date on which the
aggregate Class Certificate Balance of the Subordinate Certificates is reduced
to zero.
Senior Percentage: With respect to any Distribution Date, the
percentage, carried six places rounded up, obtained by dividing the aggregate
Class Certificate Balance of the Senior Certificates (other than the Class A-PO
Certificates) immediately prior to such Distribution Date by the aggregate Class
Certificate Balance of all Classes of Certificates (other than the Class A-PO
Certificates) immediately prior to such Distribution Date.
Senior Prepayment Percentage: For any Distribution Date during the
five years beginning on the first Distribution Date, 100%. The Senior Prepayment
Percentage for any Distribution Date occurring on or after the fifth anniversary
of the first Distribution Date will, except as provided herein, be as follows:
for any Distribution Date in the first year thereafter, the Senior Percentage
plus 70% of the Subordinate Percentage for such Distribution Date; for any
Distribution Date in the second year thereafter, the Senior Percentage plus 60%
of the Subordinate Percentage for such Distribution Date; for any Distribution
Date in the third year thereafter, the Senior Percentage plus 40% of the
Subordinate Percentage for such Distribution Date; for any Distribution Date in
the fourth year thereafter, the Senior Percentage plus 20% of the Subordinate
Percentage for such Distribution Date; and for any Distribution Date in the
fifth or later years thereafter, the Senior Percentage for such Distribution
Date (unless on any of the foregoing Distribution Dates the Senior Percentage
exceeds the initial Senior Percentage, in which case the Senior Prepayment
Percentage for such Distribution Date will once again equal 100%).
Notwithstanding the foregoing, no decrease in the Senior Prepayment Percentage
will occur unless both of the Senior Step Down Conditions are satisfied.
Senior Principal Distribution Amount: As to any Distribution Date,
the sum of (i) the Senior Percentage of the applicable Non-PO Percentage of all
amounts described in clauses (a) through (d) of the definition of "Non-PO
Principal Amount" for such Distribution Date and (ii) the Senior Prepayment
Percentage of the applicable Non-PO Percentage of the amounts described in
clauses (e) and (f) of the definition of "Non-PO Principal Amount" for such
Distribution Date.
Senior Step Down Conditions: As of any Distribution Date as to which
any decrease in the Senior Prepayment Percentage applies, (i) the outstanding
principal balance of all Mortgage Loans (including, for this purpose, any
Mortgage Loans in foreclosure or any REO Property) delinquent 60 days or more
(averaged over the preceding six month period), as a percentage of the aggregate
Class Certificate Balance of the Subordinate Certificates (averaged over the
preceding six-month period), is not equal to or greater than 50% or (ii)
cumulative Realized Losses with respect to the Mortgage Loans as of the
applicable Distribution Date do not exceed the percentages of the Original
Subordinate Certificate Balance set forth below:
Percentage of
Original Subordinate
Distribution Date Occurring Certificate Balance
--------------------------- -------------------
May 2008 through April 2009 30%
May 2009 through April 2010 35%
May 2010 through April 2011 40%
May 2011 through April 2012 45%
May 2012 and thereafter 50%
Servicer: Xxxxx Fargo Home Mortgage, Inc., in its capacity as
servicer of the Mortgage Loans, or any successor servicer appointed as herein
provided.
Servicer Advance Date: As to any Distribution Date, 11:30 a.m.,
Eastern time, on the Remittance Date.
Servicer Custodial Account: The separate Eligible Account or
Accounts created and maintained by the Servicer pursuant to Section 3.08(b).
Servicer Custodial Account Reinvestment Income: For each
Distribution Date, all income and gains net of any losses realized since the
preceding Distribution Date from Permitted Investments of funds in the Servicer
Custodial Account.
Servicer's Certificate: The monthly report required by Section 4.01.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by the Servicer of its
servicing obligations, including, but not limited to (i) the preservation,
restoration and protection of a Mortgaged Property, (ii) expenses reimbursable
to the Servicer pursuant to Section 3.14 and any enforcement or judicial
proceedings, including foreclosures, (iii) the management and liquidation of any
REO Property and (iv) compliance with the obligations under Section 3.12.
Servicing Compensation: With respect to each Distribution Date, the
sum of (i) the aggregate Servicing Fee for such Distribution Date, (ii) Excess
Proceeds for the preceding month and (iii) the Servicer Custodial Account
Reinvestment Income for such Distribution Date, subject to reduction as provided
in Section 3.17.
Servicing Fee: With respect to each Mortgage Loan and Distribution
Date, the amount of the fee payable to the Servicer, which shall, for such
Distribution Date, be equal to one-twelfth of the product of the Servicing Fee
Rate with respect to such Mortgage Loan and the Stated Principal Balance of such
Mortgage Loan, subject to reduction as provided in Section 3.17. Such fee shall
be payable monthly, computed on the basis of the same Stated Principal Balance
and period respecting which any related interest payment on a Mortgage Loan is
computed. The Servicer's right to receive the Servicing Fee is limited to, and
payable solely from, the interest portion (including recoveries with respect to
interest from Liquidation Proceeds and other proceeds, to the extent permitted
by Section 3.11) of related Monthly Payments collected by the Servicer, or as
otherwise provided under Section 3.11.
Servicing Fee Rate: With respect to each Mortgage Loan, 0.25% per
annum.
Servicing File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit J hereto, and any additional documents required to be
added to the Servicing File pursuant to the Agreement.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished to the Securities
Administrator by the Servicer, as such list may from time to time be amended.
Servicing Transfer Costs: All reasonable costs and expenses incurred
by the Securities Administrator in connection with the transfer of servicing
from a predecessor servicer, including, without limitation, any costs or
expenses associated with the complete transfer of all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the Securities Administrator to correct any errors or insufficiencies in the
servicing data or otherwise to enable the Securities Administrator to service
the Mortgage Loans properly and effectively.
Shift Percentage: As to any Distribution Date, the percentage
indicated below:
Distribution Date Occurring In Shift Percentage
------------------------------ ----------------
May 2003 through April 2008.................... 0%
May 2008 through April 2009.................... 30%
May 2009 through April 2010.................... 40%
May 2010 through April 2011`................... 60%
May 2011 through April 2012.................... 80%
May 2012 and thereafter........................ 100%
Similar Law: As defined in Section 6.02(e).
Stated Principal Balance: As to any Mortgage Loan and date, the
unpaid principal balance of such Mortgage Loan as of the Due Date immediately
preceding such date as specified in the amortization schedule at the time
relating thereto (before any adjustment to such amortization schedule by reason
of any moratorium or similar waiver or grace period) after giving effect to any
previous partial Principal Prepayments and Liquidation Proceeds allocable to
principal (other than with respect to any Liquidated Mortgage Loan) and to the
payment of principal due on such Due Date and irrespective of any delinquency in
payment by the related Mortgagor, and after giving effect to any Deficient
Valuation.
Subordinate Certificates: The Class B Certificates.
Subordinate Percentage: As of any Distribution Date, 100% minus the
Senior Percentage for such Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date, 100%
minus the Senior Prepayment Percentage for such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the sum of (i) the Subordinate Percentage
of the applicable Non-PO Percentage of all amounts described in clauses (a)
through (d) of the definition of "Non-PO Principal Amount" for such Distribution
Date and (ii) the Subordinate Prepayment Percentage of the applicable Non-PO
Percentage of the amounts described in clauses (e) and (f) of the definition of
"Non-PO Principal Amount" for such Distribution Date.
Subservicer: Any Person with which the Servicer has entered into a
Subservicing Agreement and which satisfies the requirements set forth therein.
Subservicing Agreement: Any subservicing agreement (which, in the
event the Subservicer is an affiliate of the Servicer, need not be in writing)
between the Servicer and any Subservicer relating to servicing and/or
administration of certain Mortgage Loans as provided in Section 3.02.
Substitute Mortgage Loan: A Mortgage Loan substituted for a
Defective Mortgage Loan which must, on the date of such substitution (i) have a
Stated Principal Balance, after deduction of the principal portion of the
Monthly Payment due in the month of substitution, not in excess of, and not more
than 10% less than, the Stated Principal Balance of the Defective Mortgage Loan;
(ii) have a Net Mortgage Interest Rate equal to that of the Defective Mortgage
Loan; (iii) have a Loan-to-Value Ratio not higher than that of the Defective
Mortgage Loan; (iv) have a remaining term to maturity not greater than (and not
more than one year less than) that of the Defective Mortgage Loan; (v) comply
with each Mortgage Loan representation and warranty set forth in the Mortgage
Loan Purchase Agreement and the Transfer Agreements relating to the Defective
Mortgage Loan; and (vi) have been originated prior to (a) October 1, 2002 if
such Mortgaged Property is located in the state of Georgia, and (b) April 1,
2003 if such Mortgaged Property is located in the state of New York, not be
considered "high cost" as defined by the applicable predatory and abusive
lending laws. More than one Substitute Mortgage Loan may be substituted for a
Defective Mortgage Loan if such Substitute Mortgage Loans meet the foregoing
attributes in the aggregate.
Substitution Adjustment Amount: As defined in Section 2.02.
Tax Matters Person: Any person designated as "tax matters person" in
accordance with Section 5.06 and the manner provided under Treasury Regulation
ss. 1.860F-4(d) and Treasury Regulation ss. 301.6231(a)(7)-1.
Transfer Agreements: Each of the (i) Seller's Warranties and
Servicing Agreement, dated as of March 1, 2002, between Banc of America Mortgage
Capital Corporation, as purchaser, and Xxxxx Fargo Home Mortgage, Inc., as
seller and servicer, relating to "30 Year Fixed Rate Mortgage Loans WFHM
2002-W11" and (ii) Seller's Warranties and Servicing Agreement, dated as of
August 1, 2002, between Banc of America Mortgage Capital Corporation, as
purchaser, and Xxxxx Fargo Home Mortgage, Inc., as seller and servicer, relating
to "30 Year Fixed Rate Mortgage Loans WFHM 2002-W51"
Transferor: Xxxxx Fargo Home Mortgage, Inc.
Treasury Regulations: The final and temporary regulations
promulgated under the Code by the U.S. Department of the Treasury.
Trust: The trust created by this Agreement, which shall be named
"Banc of America Funding 2003-1 Trust".
Trust Estate: The corpus of the Trust created to the extent
described herein, consisting of the Mortgage Loans, such assets as shall from
time to time be identified as deposited in the Servicer Custodial Account or the
Certificate Account, in accordance with this Agreement, REO Property, the
Primary Mortgage Insurance Policies and any other Required Insurance Policy and
the right to receive amounts, if any, payable on behalf of any Mortgagor from
the Buy-Down Account relating to any Buy-Down Mortgage Loan. The Buy-Down
Account shall not be part of the Trust Estate.
Trustee: Wachovia Bank, National Association, and its
successors-in-interest and, if a successor trustee is appointed hereunder, such
successor, as trustee.
Underwriting Guidelines: The underwriting guidelines of Xxxxx Fargo
Home Mortgage, Inc.
U.S. Person: A citizen or resident of the United States, a
corporation or partnership (unless, in the case of a partnership, Treasury
Regulations are adopted that provide otherwise) created or organized in or under
the laws of the United States, any state thereof or the District of Columbia,
including an entity treated as a corporation or partnership for federal income
tax purposes, an estate whose income is subject to United States federal income
tax regardless of its source, or a trust if a court within the United States is
able to exercise primary supervision over the administration of such trust, and
one or more such U.S. Persons have the authority to control all substantial
decisions of such trust (or, to the extent provided in applicable Treasury
Regulations, certain trusts in existence on August 20, 1996 which are eligible
to elect to be treated as U.S. Persons).
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Holders of
the Residual Certificate, (b) 1% of the all Voting Rights shall be allocated to
the Holders of the Class A-WIO Certificates and (c) the remaining Voting Rights
shall be allocated among Holders of the remaining Classes of Certificates in
proportion to the Certificate Balances of their respective Certificates on such
date.
Section 1.02. Interest Calculations. All calculations of interest
will be made on a 360-day year consisting of twelve 30-day months. All dollar
amounts calculated hereunder shall be rounded to the nearest xxxxx with one-half
of one xxxxx being rounded down.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee on behalf of the Trust
for the benefit of the Certificateholders, without recourse, all the right,
title and interest of the Depositor in and to the Mortgage Loans, including all
interest and principal received on or with respect to the Mortgage Loans (other
than payments of principal and interest due and payable on the Mortgage Loans on
or before the Cut-Off Date) and the Depositor's rights under the Mortgage Loan
Purchase Agreement, including the rights of the Depositor as assignee of the
Seller with respect to the Seller's rights under the Transfer 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.
(b) In connection with such transfer and assignment, the Depositor
has delivered or caused to be delivered to the Trustee, for the benefit of the
Certificateholders, the following documents or instruments with respect to each
Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed by manual or facsimile
signature in the following form: "Pay to the order of Wachovia Bank,
National Association, as trustee for holders of Banc of America Funding
Corporation Mortgage Pass-Through Certificates, Series 2003-1, without
recourse," with all necessary intervening endorsements showing a complete
chain of endorsement from the originator to the Trustee (each such
endorsement being sufficient to transfer all right, title and interest of
the party so endorsing, as noteholder or assignee thereof, in and to that
Mortgage Note);
(ii) except as provided below, the original recorded Mortgage with
evidence of a recording thereon, or if any such Mortgage has not been
returned from the applicable recording office or has been lost, or if such
public recording office retains the original recorded Mortgage, a copy of
such Mortgage certified by the Depositor as being a true and correct copy
of the Mortgage;
(iii) subject to the provisos at the end of this paragraph, a duly
executed Assignment of Mortgage to "Wachovia Bank, National Association,
as trustee for the holders of Banc of America Funding Corporation Mortgage
Pass-Through Certificates, Series 2003-1" (which may be included in a
blanket assignment or assignments), together with, except as provided
below, originals of all interim recorded assignments of such mortgage or a
copy of such interim assignment certified by the Depositor as being a true
and complete copy of the original recorded intervening assignments of
Mortgage (each such assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and transfer to
the assignee thereof, under the Mortgage to which the assignment relates);
provided that, if the related Mortgage has not been returned from the
applicable public recording office, such Assignment of Mortgage may
exclude the information to be provided by the recording office; and
provided, further, if the related Mortgage has been recorded in the name
of Mortgage Electronic Registration Systems, Inc. ("MERS") or its
designee, no Assignment of Mortgage in favor of the Trustee will be
required to be prepared or delivered and instead, the Servicer shall take
all actions as are necessary to cause the Trust to be shown as the owner
of the related Mortgage Loan on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages
maintained by MERS;
(iv) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon, if any;
(v) the original or duplicate original mortgagee title insurance
policy and all riders thereto;
(vi) the original of any guarantee executed in connection with the
Mortgage Note;
(vii) for each Mortgage Loan, if any, which is secured by a
residential long-term lease, a copy of the lease with evidence of
recording indicated thereon, or, if the lease is in the process of being
recorded, a photocopy of the lease, certified by an officer of the
respective prior owner of such Mortgage Loan or by the applicable title
insurance company, closing/settlement/escrow agent or company or closing
attorney to be a true and correct copy of the lease transmitted for
recordation;
(viii) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage; and
(ix) for each Mortgage Loan secured by Co-op Shares, the originals
of the following documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate
UCC financing statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the Trustee with
evidence of recording thereon (or in a form suitable for
recordation).
provided, however, that on the Closing Date, with respect to item (iii), the
Depositor has delivered to the Trustee a copy of such Assignment of Mortgage in
blank and has caused the Servicer to retain the completed Assignment of Mortgage
for recording as described below, unless such Mortgage has been recorded in the
name of MERS or its designee. In addition, if the Depositor is unable to deliver
or cause the delivery of any original Mortgage Note due to the loss of such
original Mortgage Note, the Depositor may deliver a copy of such Mortgage Note,
together with a lost note affidavit, and shall thereby be deemed to have
satisfied the document delivery requirements of this Section 2.01(b). As set
forth on Exhibit L attached hereto is a list of all states where recordation is
required by either Rating Agency to obtain the initial ratings of the
Certificates. The Securities Administrator, the Trustee and the Custodian may
rely and shall be protected in relying upon the information contained in such
Exhibit L.
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 (together with all riders thereto) satisfying the
requirements of clause (ii), (iii), (iv) or (v) above, respectively,
concurrently with the execution and delivery hereof because such document or
documents have not been returned from the applicable public recording office in
the case of clause (ii), (iii) or (iv) above, or because the title policy has
not been delivered to either the Servicer or the Depositor by the applicable
title insurer in the case of clause (v) above, the Depositor shall promptly
deliver or cause to be delivered to the Trustee or the Custodian on behalf of
the Trustee, in the case of clause (ii), (iii) or (iv) above, such Mortgage,
such interim assignment or such assumption, modification, consolidation or
extension agreement, as the case may be, with evidence of recording indicated
thereon upon receipt thereof from the public recording office, but in no event
shall any such delivery of any such documents or instruments be made later than
one year following the Closing Date, unless, in the case of clause (ii), (iii)
or (iv) above, there has been a continuing delay at the applicable recording
office or, in the case of clause (v), there has been a continuing delay at the
applicable insurer and the Depositor has delivered the Officer's Certificate to
such effect to the Trustee. The Depositor shall forward or cause to be forwarded
to the Trustee (1) from time to time additional original documents evidencing an
assumption or modification of a Mortgage Loan and (2) any other documents
required to be delivered by the Depositor or the Servicer to the Trustee or the
Custodian on the Trustee's behalf. In the event that the original Mortgage is
not delivered and in connection with the payment in full of the related Mortgage
Loan the public recording office requires the presentation of a "lost
instruments affidavit and indemnity" or any equivalent document, because only a
copy of the Mortgage can be delivered with the instrument of satisfaction or
reconveyance, the Servicer shall prepare, execute and deliver or cause to be
prepared, executed and delivered, on behalf of the Trust, such a document to the
public recording office.
As promptly as practicable subsequent to such transfer and
assignment, and in any event, within 30 days thereafter, the Servicer shall
(except for any Mortgage which has been recorded in the name of MERS or its
designee) (I) cause each Assignment of Mortgage to be in proper form for
recording in the appropriate public office for real property records within 30
days of the Closing Date and (II) at the Depositor's expense, cause to be
delivered for recording in the appropriate public office for real property
records the Assignments of the Mortgages to the Trustee, except that, with
respect to any Assignment of a Mortgage as to which the Servicer has not
received the information required to prepare such assignment in recordable form,
the Servicer's obligation to do so and to deliver the same for such recording
shall be as soon as practicable after receipt of such information and in any
event within 30 days after the receipt thereof and, no recording of an
Assignment of Mortgage will be required in a state if either (i) the Depositor
furnishes to the Trustee 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.
In the case of Mortgage Loans that have been prepaid in full as of
the Closing Date, the Depositor, in lieu of delivering the above documents to
the Trustee, or the Custodian on the Trustee's behalf, will cause the Servicer
to deposit in the Servicer Custodial Account the portion of such payment that is
required to be deposited in the Servicer Custodial Account pursuant to Section
3.08.
Section 2.02. Acceptance by the Trustee of the Mortgage Loans.
Subject to the provisions of the following paragraph, the Trustee declares that
it, or the Custodian as its agent, will hold the documents referred to in
Section 2.01 and the other documents delivered to it constituting the Mortgage
Files, and that it will hold such other assets as are included in the Trust
Estate 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 the Custodian to deliver to the
Depositor and the Servicer a certification in the form of Exhibit M hereto (the
"Initial Certification") to the effect that, except as may be specified in a
list of exceptions attached thereto, it has received the original Mortgage Note
relating to each of the Mortgage Loans listed on the Mortgage Loan Schedule.
Within 90 days after the execution and delivery of this Agreement,
the Trustee shall review, or cause the Custodian to review, the Mortgage Files
in its possession, and shall deliver to the Depositor and the Servicer a
certification in the form of Exhibit N hereto (the ("Final Certification") to
the effect that, as to each Mortgage Loan listed in the Mortgage Loan Schedule,
except as may be specified in a list of exceptions attached to such Final
Certification, such Mortgage File contains all of the items required to be
delivered pursuant to Section 2.01(b).
If, in the course of such review, the Trustee or the Custodian finds
any document constituting a part of a Mortgage File which does not meet the
requirements of Section 2.01 or is omitted from such Mortgage File or if the
Depositor, the Servicer, the Trustee, the Securities Administrator or the
Custodian discovers a breach by the Transferor or the Seller of any
representation, warranty or covenant under the Transfer Agreements or the
Mortgage Loan Purchase Agreement in respect of any Mortgage Loan and such breach
materially adversely affects the interest of the Certificateholders in the
related Mortgage Loan (provided that any such breach that causes the Mortgage
Loan not to be a "qualified mortgage" within the meaning of Section 860G(a)(3)
of the code shall be deemed to materially and adversely affect the interests of
the Certificateholders), then such party shall promptly so notify or cause the
Custodian to promptly so notify the Servicer, the Seller, the Transferor and the
Depositor of such failure to meet the requirements of Section 2.01 or of such
breach and request that the Transferor or the Seller, 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 requirements
of Section 2.01 or of such breach. If the Seller or the Transferor, as
applicable, does not deliver such missing document or cure such defect or breach
in all material respects during such period, the Trustee shall enforce the
Transferor's or Seller's obligation, as the case may be, under the Transfer
Agreements or the Mortgage Loan Purchase Agreement, as applicable, and cause the
Transferor or Seller, as applicable, to (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 Repurchase Price for such Mortgage Loan;
provided, however, that in no event shall such a substitution occur more than
two years from the Closing Date; provided, further, that such substitution or
repurchase must occur within 90 days of when such defect was discovered if such
defect will cause the Mortgage Loan not to be a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code.
In performing any such review, the Trustee or the Custodian may
conclusively rely on the purported genuineness of any such document and any
signature thereon. It is understood that the scope of the Trustee's or the
Custodian's review of the Mortgage Files is limited solely to confirming that
the documents listed in Section 2.01 have been received and further confirming
that any and all documents delivered pursuant to Section 2.01 appear on their
face to have been executed and relate to the Mortgage Loans identified in the
Mortgage Loan Schedule based solely upon the review of items (i) and (xi) in the
Mortgage Loan Schedule. Neither the Trustee nor the Custodian shall have any
responsibility for determining whether any document is valid and binding,
whether the text of any assignment or endorsement is in proper or recordable
form, whether any document has been recorded in accordance with the requirements
of any applicable jurisdiction, or whether a blanket assignment is permitted in
any applicable jurisdiction.
In the event of a discovery of a breach of any representation or
warranty of the Transferor or the Seller, the Trustee shall enforce the rights
of the Trust under the Transfer Agreements and the Mortgage Loan Purchase
Agreement for the benefit of the Certificateholders. In the event of a breach of
the representations or warranties with respect to the Mortgage Loans set forth
in the Transfer Agreements, the Trustee shall enforce the right of the Trust to
be indemnified for such breach of representation or warranty. In addition, if a
breach of the representation set forth in clause (k) of paragraph 3 of the
Mortgage Loan Purchase Agreement occurs as a result of a violation of an
applicable predatory or abusive lending law, the Trustee shall enforce the right
of the Trust to reimbursement by the Seller for all costs or damages incurred by
the Trust as a result of the violation of such law (such amount, the
"Reimbursement Amount"). It is understood and agreed that, except for any
indemnification provided in the Transfer Agreements and the payment of any
Reimbursement Amount, the obligation of the Transferor or the Seller 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
the Transferor or the Seller in respect of such omission, defect or breach
available to the Trustee on behalf of the Certificateholders.
With respect to the representations and warranties set forth in the
Mortgage Loan Purchase Agreement that are made to the best of the Seller's
knowledge or as to which the Seller had no knowledge, if it is discovered by the
Depositor, the 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 Seller's lack of knowledge with respect to the substance of
such representation or warranty being inaccurate as the time the representation
or warranty was made, such in accuracy shall be deemed a breach of the
applicable representation or warranty.
It is understood and agreed that the representations and warranties
set forth in the Mortgage Loan Purchase Agreement shall survive delivery of the
Mortgage Files to the Trustee or the Custodian 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 Seller
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 the Transferor with respect to
the Mortgage Loans in the Transfer Agreements, which have been assigned to the
Trustee hereunder, were made as of the date specified in the Transfer
Agreements. To the extent that any fact, condition or event with respect to a
Mortgage Loan constitutes a breach of both (i) a representation or warranty of
the Transferor under the Transfer Agreements and (ii) a representation or
warranty of the Seller under the Mortgage Loan Purchase Agreement, the only
right or remedy of the Trustee or of any Certificateholder shall be the
Trustee's right to enforce the obligations of the applicable Transferor under
any applicable representation or warranty made by it. The Trustee acknowledges
that the Seller shall have no obligation or liability with respect to any breach
of a representation or warranty made by it with respect to the Mortgage Loans if
the fact, condition or event constituting such breach also constitutes a breach
of a representation or warranty made by the applicable Transferor in the
applicable Transfer Agreement, without regard to whether the Transferor fulfills
its contractual obligations in respect of such representation or warranty. The
Trustee further acknowledges that the Depositor shall have no obligation or
liability with respect to any breach of any representation or warranty with
respect to the Mortgage Loans (except as set forth in Section 2.04) under any
circumstances. Xxxxx Fargo Home Mortgage, Inc. hereby acknowledges that its
representations and warranties under the Transfer Agreements, and the Seller's
rights and remedies under the Transfer Agreements, have been assigned to the
Trustee for the benefit of the Certificateholders.
With respect to each Substitute Mortgage Loan the Transferor or
Seller, as applicable, shall deliver to the Trustee, for the benefit of the
Certificateholders, the Mortgage Note, the Mortgage, the related Assignment of
Mortgage (except for any Mortgage which has been recorded in the name of MERS or
its designee), and such other documents and agreements as are otherwise required
by Section 2.01, with the Mortgage Note endorsed and the Mortgage assigned as
required by Section 2.01. No substitution is permitted to be made in any
calendar month after the Determination Date for such month. Monthly Payments due
with respect to any such Substitute Mortgage Loan in the month of substitution
shall not be part of the Trust Estate and will be retained by the Depositor. For
the month of substitution, distributions to Certificateholders will include the
Monthly Payment due for such month on any Defective Mortgage Loan for which the
Depositor has substituted a Substitute Mortgage Loan.
The Servicer shall amend the Mortgage Loan Schedule for the benefit
of the Certificateholders to reflect the removal of each Mortgage Loan that has
become a Defective Mortgage Loan and the substitution of the Substitute Mortgage
Loan or Loans and the Servicer shall deliver the amended Mortgage Loan Schedule
to the Securities Administrator, the Trustee and the Custodian. Upon such
substitution, each Substitute Mortgage Loan shall be subject to the terms of
this Agreement in all respects, and the Depositor shall be deemed to have made
to the Trustee with respect to such Substitute Mortgage Loan, as of the date of
substitution, the representations and warranties made pursuant to the Transfer
Agreements or the Mortgage Loan Purchase Agreement, as applicable. Upon any such
substitution and the deposit to the Certificate Account of any required
Substitution Adjustment Amount (as described in the next paragraph) and receipt
of a Request for Release, the Trustee shall release, or shall direct the
Custodian to release, the Mortgage File relating to such Defective Mortgage Loan
to the Depositor and shall execute and deliver at the Depositor's direction such
instruments of transfer or assignment prepared by the Depositor, in each case
without recourse, as shall be necessary to vest title in the Depositor, or its
designee, to the Trustee's interest in any Defective Mortgage Loan substituted
for pursuant to this Section 2.02.
For any month in which the Seller or the Transferor, as applicable,
substitutes one or more Substitute Mortgage Loans for one or more Defective
Mortgage Loans, the amount (if any) by which the aggregate principal balance of
all such Substitute Mortgage Loans as of the date of substitution is less than
the aggregate Stated Principal Balance of all such Defective Mortgage Loans
(after application of the principal portion of the Monthly Payments due in the
month of substitution) (the "Substitution Adjustment Amount") plus an amount
equal to the aggregate of any unreimbursed Advances with respect to such
Defective Mortgage Loans shall be deposited into the Certificate Account by the
Depositor on or before the Remittance Date for the Distribution Date in the
month succeeding the calendar month during which the related Mortgage Loan is
required to be purchased or replaced hereunder. The Repurchase Price of any
repurchase and the Substitution Adjustment Amount, if any, shall be deposited in
the Certificate Account.
The Trustee shall retain or shall cause the Custodian to retain
possession and custody of each Mortgage File in accordance with and subject to
the terms and conditions set forth herein. The Servicer shall promptly deliver
to the Trustee, upon the execution or, in the case of documents requiring
recording, receipt thereof, the originals of such other documents or instruments
constituting the Mortgage File as come into the Servicer's possession from time
to time.
The Trustee or the Custodian, on behalf of the Trustee, shall be
under no duty or obligation (i) to inspect, review or examine any such
documents, instruments, certificates or other papers to determine that they are
genuine, enforceable, or appropriate for the represented purpose or that they
are other than what they purport to be on their face or (ii) to determine
whether any Mortgage File should include any of the documents specified in
Section 2.01(b)(iv), (vi), (vii), (viii) and (ix).
Section 2.03. Representations, Warranties and Covenants of the
Servicer.
The Servicer hereby makes the following representations and
warranties to the Depositor, the Securities Administrator and the Trustee, as of
the Closing Date:
(i) The Servicer is a corporation duly organized, validly existing,
and in good standing under the laws of the State of California and has all
licenses necessary to carry on its business as now being conducted and is
licensed, qualified and in good standing in each of the states where a
Mortgaged Property is located if the laws of such state require licensing
or qualification in order to conduct business of the type conducted by the
Servicer. The Servicer has power and authority to execute and deliver this
Agreement and to perform in accordance herewith; the execution, delivery
and performance of this Agreement (including all instruments of transfer
to be delivered pursuant to this Agreement) by the Servicer and the
consummation of the transactions contemplated hereby have been duly and
validly authorized. This Agreement, assuming due authorization, execution
and delivery by the other parties hereto, evidences the valid, binding and
enforceable obligation of the Servicer, subject to applicable law except
as enforceability may be limited by (A) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other similar
laws affecting the enforcement of the rights of creditors and (B) general
principles of equity, whether enforcement is sought in a proceeding in
equity or at law. All requisite corporate action has been taken by the
Servicer to make this Agreement valid and binding upon the Servicer in
accordance with its terms.
(ii) No consent, approval, authorization or order is required for
the transactions contemplated by this Agreement from any court,
governmental agency or body, or federal or state regulatory authority
having jurisdiction over the Servicer is required or, if required, such
consent, approval, authorization or order has been or will, prior to the
Closing Date, be obtained.
(iii) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Servicer and will
not result in the breach of any term or provision of the articles of
incorporation or by-laws of the Servicer or result in the breach of any
term or provision of, or conflict with or constitute a default under or
result in the acceleration of any obligation under, any agreement,
indenture or loan or credit agreement or other instrument to which the
Servicer or its property is subject, or result in the violation of any
law, rule, regulation, order, judgment or decree to which the Servicer or
its property is subject.
(iv) There is no action, suit, proceeding or investigation pending
or, to the best knowledge of the Servicer, threatened against the Servicer
which, either individually or in the aggregate, would result in any
material adverse change in the business, operations, financial condition,
properties or assets of the Servicer, or in any material impairment of the
right or ability of the Servicer to carry on its business substantially as
now conducted or which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action taken or to be taken in
connection with the obligations of the Servicer contemplated herein, or
which would materially impair the ability of the Servicer to perform under
the terms of this Agreement.
The representations and warranties made pursuant to this Section
2.03 shall survive delivery of the respective Mortgage Files to the Trustee for
the benefit of the Certificateholders.
Section 2.04. Representations and Warranties of the Depositor as to
the Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee with
respect to the Mortgage Loans or each Mortgage Loan, as the case may be, as of
the date hereof or such other date set forth herein that as of the Closing Date:
(i) Immediately prior to the transfer and assignment contemplated
herein, the Depositor was the sole owner and holder of the Mortgage Loans.
The Mortgage Loans were not assigned or pledged by the Depositor and the
Depositor had good and marketable title thereto, and the Depositor had
full right to transfer and sell the Mortgage Loans to the Trustee free and
clear of any encumbrance, participation interest, lien, equity, pledge,
claim or security interest and had full right and authority subject to no
interest or participation in, or agreement with any other party to sell or
otherwise transfer the Mortgage Loans.
(ii) As of the Closing Date, the Depositor has transferred all
right, title and interest in the Mortgage Loans to the Trustee on behalf
of the Trust.
(iii) As of the Closing Date, the Depositor has not transferred the
Mortgage Loans to the Trustee on behalf of the Trust with any intent to
hinder, delay or defraud an of its creditors.
It is understood and agreed that the representations and warranties
set forth in this Section 2.04 shall survive delivery of the respective Mortgage
Files to the Trustee or the Custodian and shall inure to the benefit of the
Trustee, notwithstanding any restrictive or qualified endorsement or assignment.
Section 2.05. Designation of Interests in the REMIC. The Depositor
hereby designates the Classes of Class A Certificates (other than the Class A-R
Certificate) and the Classes of Class B Certificates as "regular interests" and
the Class A-R Certificate as the single class of "residual interest" in the
REMIC for the purposes of Code Sections 860G(a)(1) and 860G(a)(2), respectively.
Section 2.06. Designation of Start-up Day. The Closing Date is
hereby designated as the "start-up day" of the REMIC within the meaning of
Section 860G(a)(9) of the Code.
Section 2.07. REMIC Certificate Maturity Date. Solely for purposes
of satisfying Section 1.860G-1(a)(4)(iii) of the Treasury Regulations, the
"latest possible maturity date" of the regular interests in the REMIC is May 25,
2033.
Section 2.08. Execution and Delivery of Certificates. The Securities
Administrator has executed and delivered to or upon the order of the Depositor,
in exchange for the Mortgage Loans together with all other assets included in
the definition of "Trust Estate," receipt of which is hereby acknowledged,
Certificates in authorized denominations which evidence ownership of the entire
Trust Estate.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01. Servicer to Service Mortgage Loans. For and on behalf
of the Certificateholders, the Servicer shall service and administer the
Mortgage Loans, all in accordance with the terms of this Agreement, Customary
Servicing Procedures, applicable law and the terms of the Mortgage Notes and
Mortgages. In connection with such servicing and administration, the Servicer
shall have full power and authority, acting alone and/or through Subservicers as
provided in Section 3.02, to do or cause to be done any and all things that it
may deem necessary or desirable in connection with such servicing and
administration including, but not limited to, the power and authority, subject
to the terms hereof, (a) to execute and deliver, on behalf of the
Certificateholders, the Securities Administrator and the Trustee, customary
consents or waivers and other instruments and documents, (b) to consent, with
respect to the Mortgage Loans it services, to transfers of any Mortgaged
Property and assumptions of the Mortgage Notes and related Mortgages (but only
in the manner provided in this Agreement), (c) to collect any Insurance Proceeds
and other Liquidation Proceeds relating to the Mortgage Loans it services, and
(d) to effectuate foreclosure or other conversion of the ownership of the
Mortgaged Property securing any Mortgage Loan it services. The Servicer shall
represent and protect the interests of the Trust in the same manner as it
protects its own interests in mortgage loans in its own portfolio in any claim,
proceeding or litigation regarding a Mortgage Loan and shall not make or permit
any modification, waiver or amendment of any term of any Mortgage Loan, except
as provided pursuant to Section 3.21. Without limiting the generality of the
foregoing, the Servicer, in its own name or in the name of any Subservicer or
the Depositor, the Securities Administrator and the Trustee, is hereby
authorized and empowered by the Depositor, the Securities Administrator and the
Trustee, when the Servicer or any Subservicer, as the case may be, believes it
appropriate in its reasonable judgment, to execute and deliver, on behalf of the
Trustee, the Securities Administrator, the Depositor, the Certificateholders or
any of them, any and all instruments of satisfaction or cancellation, or of
partial or full release or discharge, and all other comparable instruments, with
respect to the Mortgage Loans it services, and with respect to the related
Mortgaged Properties held for the benefit of the Certificateholders. The
Servicer shall prepare and deliver to the Depositor and/or the Trustee and/or
the Securities Administrator such documents requiring execution and delivery by
any or all of them as are necessary or appropriate to enable the Servicer to
service and administer the Mortgage Loans it services to the extent that the
Servicer is not permitted to execute and deliver such documents pursuant to the
preceding sentence. Upon receipt of such documents, the Depositor and/or the
Trustee and/or the Securities Administrator, upon the direction of the Servicer,
shall promptly execute such documents and deliver them to the Servicer.
In accordance with the standards of the preceding paragraph, the
Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the payment of taxes and assessments on the Mortgaged
Properties relating to the Mortgage Loans it services, which Servicing Advances
shall be reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11.
The costs incurred by the Servicer, if any, in effecting the timely payments of
taxes and assessments on the Mortgaged Properties and related insurance premiums
shall not, for the purpose of calculating monthly distributions to the
Certificateholders, be added to the Stated Principal Balances of the related
Mortgage Loans, notwithstanding that the terms of such Mortgage Loans so permit.
The relationship of the Servicer (and of any successor to the
Servicer as servicer under this Agreement) to the Trustee 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. Subservicing; Enforcement of the Obligations of
Servicer.
(a) The Servicer may arrange for the subservicing of any Mortgage
Loan it services by a Subservicer pursuant to a Subservicing Agreement;
provided, however, that such subservicing arrangement and the terms of the
related Subservicing Agreement must provide for the servicing of such Mortgage
Loan in a manner consistent with the servicing arrangements contemplated
hereunder. Notwithstanding the provisions of any Subservicing Agreement, any of
the provisions of this Agreement relating to agreements or arrangements between
the Servicer and a Subservicer or reference to actions taken through a
Subservicer or otherwise, the Servicer shall remain obligated and liable to the
Depositor, the Securities Administrator, the Trustee and the Certificateholders
for the servicing and administration of the Mortgage Loans it services in
accordance with the provisions of this Agreement without diminution of such
obligation or liability by virtue of such Subservicing Agreements or
arrangements or by virtue of indemnification from the Subservicer and to the
same extent and under the same terms and conditions as if the Servicer alone
were servicing and administering those Mortgage Loans. All actions of each
Subservicer performed pursuant to the related Subservicing Agreement shall be
performed as agent of the Servicer with the same force and effect as if
performed directly by the Servicer.
(b) For purposes of this Agreement, the Servicer shall be deemed to
have received any collections, recoveries or payments with respect to the
Mortgage Loans it services that are received by a Subservicer regardless of
whether such payments are remitted by the Subservicer to the Servicer.
(c) As part of its servicing activities hereunder, the Servicer, for
the benefit of the Trustee, the Securities Administrator and the
Certificateholders, shall use its best reasonable efforts to enforce the
obligations of each Subservicer engaged by the Servicer under the related
Subservicing Agreement, to the extent that the non-performance of any such
obligation would have a material and adverse effect on a Mortgage Loan. Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of Subservicing Agreements and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time as the Servicer, in its good faith business judgment, would require were it
the owner of the related Mortgage Loans. The Servicer shall pay the costs of
such enforcement at its own expense, and shall be reimbursed therefor only (i)
from a general recovery resulting from such enforcement to the extent, if any,
that such recovery exceeds all amounts due in respect of the related Mortgage
Loan or (ii) from a specific recovery of costs, expenses or attorneys fees
against the party against whom such enforcement is directed.
(d) Any Subservicing Agreement entered into by the Servicer shall
provide that it may be assumed or terminated by the Securities Administrator, if
the Securities Administrator has assumed the duties of the Servicer, or any
successor Servicer, at the Securities Administrator's or successor Servicer's
option, as applicable, without cost or obligation to the assuming or terminating
party or the Trust Estate, upon the assumption by such party of the obligations
of the Servicer pursuant to Section 8.05.
Any Subservicing Agreement, and any other transactions or services
relating to the Mortgage Loans involving a Subservicer, shall be deemed to be
between the Servicer and such Subservicer alone, and the Trustee, the Securities
Administrator and the Certificateholders shall not be deemed parties thereto and
shall have no claims or rights of action against, rights, obligations, duties or
liabilities to or with respect to the Subservicer or its officers, directors or
employees, except as set forth in Section 3.01.
Section 3.03. Fidelity Bond; Errors and Omissions Insurance.
The Servicer shall maintain, at its own expense, a blanket fidelity
bond and an errors and omissions insurance policy, with broad coverage on all
officers, employees or other persons acting in any capacity requiring such
persons to handle funds, money, documents or papers relating to the Mortgage
Loans it services. These policies must insure the Servicer against losses
resulting from dishonest or fraudulent acts committed by the Servicer's
personnel, any employees of outside firms that provide data processing services
for the Servicer, and temporary contract employees or student interns. Such
fidelity bond shall also protect and insure the Servicer against losses in
connection with the release or satisfaction of a Mortgage Loan without having
obtained payment in full of the indebtedness secured thereby. No provision of
this Section 3.03 requiring such fidelity bond and errors and omissions
insurance shall diminish or relieve the Servicer from its duties and obligations
as set forth in this Agreement. The minimum coverage under any such bond and
insurance policy shall be at least equal to the corresponding amounts required
by FNMA in the FNMA Servicing Guide or by FHLMC in the FHLMC Sellers' &
Servicers' Guide, as amended or restated from time to time, or in an amount as
may be permitted to the Servicer by express waiver of FNMA or FHLMC.
Section 3.04. Access to Certain Documentation.
The Servicer shall provide to the OTS and the FDIC and to comparable
regulatory authorities supervising Holders of Subordinate Certificates and the
examiners and supervisory agents of the OTS, the FDIC and such other
authorities, access to the documentation required by applicable regulations of
the OTS and the FDIC with respect to the Mortgage Loans. Such access shall be
afforded without charge, but only upon reasonable and prior written request and
during normal business hours at the offices designated by the Servicer. Nothing
in this Section 3.04 shall limit the obligation of the Servicer to observe any
applicable law and the failure of the Servicer to provide access as provided in
this Section 3.04 as a result of such obligation shall not constitute a breach
of this Section 3.04.
Section 3.05. Maintenance of Primary Mortgage Insurance Policy;
Claims.
With respect to each Mortgage Loan with a Loan-to-Value Ratio in
excess of 80% or such other Loan-to-Value Ratio as may be required by law, the
Servicer responsible for servicing such Mortgage Loan shall, without any cost to
the Trust Estate, maintain or cause the Mortgagor to maintain in full force and
effect a Primary Mortgage Insurance Policy insuring that portion of the Mortgage
Loan in excess of a percentage in conformity with FNMA requirements. The
Servicer shall pay or shall cause the Mortgagor to pay the premium thereon on a
timely basis, at least until the Loan-to-Value Ratio of such Mortgage Loan is
reduced to 80% or such other Loan-to-Value Ratio as may be required by law. If
such Primary Mortgage Insurance Policy is terminated, the Servicer shall obtain
from another insurer a comparable replacement policy, with a total coverage
equal to the remaining coverage of such terminated Primary Mortgage Insurance
Policy. If the insurer shall cease to be an insurer acceptable to FNMA, the
Servicer shall notify the Securities Administrator in writing, it being
understood that the Servicer shall not have any responsibility or liability for
any failure to recover under the Primary Mortgage Insurance Policy for such
reason. If the Servicer determines that recoveries under the Primary Mortgage
Insurance Policy are jeopardized by the financial condition of the insurer, the
Servicer shall obtain from another insurer which meets the requirements of this
Section 3.05 a replacement insurance policy. The Servicer shall not take any
action that would result in noncoverage under any applicable Primary Mortgage
Insurance Policy of any loss that, but for the actions of the Servicer, would
have been covered thereunder. In connection with any assumption or substitution
agreement entered into or to be entered into pursuant to Section 3.13, the
Servicer shall promptly notify the insurer under the related Primary Mortgage
Insurance Policy, if any, of such assumption or substitution of liability in
accordance with the terms of such Primary Mortgage Insurance Policy and shall
take all actions which may be required by such insurer as a condition to the
continuation of coverage under such Primary Mortgage Insurance Policy. If such
Primary Mortgage Insurance Policy is terminated as a result of such assumption
or substitution of liability, the Servicer shall obtain a replacement Primary
Mortgage Insurance Policy as provided above.
In connection with its activities as servicer, the Servicer agrees
to prepare and present, on behalf of itself, the Trustee and the
Certificateholders, claims to the insurer under any Primary Mortgage Insurance
Policy in a timely fashion in accordance with the terms of such Primary Mortgage
Insurance Policy and, in this regard, to take such action as shall be necessary
to permit recovery under any Primary Mortgage Insurance Policy respecting a
defaulted Mortgage Loan. Pursuant to Section 3.09(a), any amounts collected by
the Servicer under any Primary Mortgage Insurance Policy shall be deposited in
the related Escrow Account, subject to withdrawal pursuant to Section 3.09(b).
The Servicer will comply with all provisions of applicable state and
federal law relating to the cancellation of, or collection of premiums with
respect to, Primary Mortgage Insurance, including, but not limited to, the
provisions of the Homeowners Protection Act of 1998, and all regulations
promulgated thereunder, as amended from time to time.
Section 3.06. Rights of the Depositor, the Securities Administrator
and the Trustee in Respect of the Servicer.
The Depositor may, but is not obligated to, enforce the obligations
of the Servicer hereunder and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of the Servicer hereunder and in
connection with any such defaulted obligation to exercise the related rights of
the Servicer hereunder; provided that the Servicer shall not be relieved of any
of its obligations hereunder by virtue of such performance by the Depositor or
its designee. Neither the Securities Administrator, the Trustee nor the
Depositor shall have any responsibility or liability for any action or failure
to act by the Servicer nor shall the Securities Administrator, the Trustee or
the Depositor be obligated to supervise the performance of the Servicer (or any
Subservicer) hereunder or otherwise.
Any Subservicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such shall be deemed to be between the Subservicer and the
Servicer alone, and the Securities Administrator, the Trustee and
Certificateholders shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the Subservicer
except as set forth in Section 3.07. The Servicer shall be solely liable for all
fees owed by it to any Subservicer, irrespective of whether the Servicer's
compensation pursuant to this Agreement is sufficient to pay such fees.
Section 3.07. Securities Administrator to Act as Servicer.
If the Servicer shall for any reason no longer be the Servicer
hereunder (including by reason of an Event of Default), the Securities
Administrator shall within 90 days of such time, assume, if it so elects, or
shall appoint a successor Servicer to assume, all of the rights and obligations
of the Servicer hereunder arising thereafter (except that the Securities
Administrator shall not be (a) liable for losses of the Servicer pursuant to
Section 3.12 or any acts or omissions of the predecessor Servicer hereunder, (b)
obligated to make Advances if it is prohibited from doing so by applicable law
or (c) deemed to have made any representations and warranties of the Servicer
hereunder). Any such assumption shall be subject to Sections 7.02 and 8.05. If
the Servicer shall for any reason no longer be the Servicer (including by reason
of any Event of Default), the Securities Administrator or the successor Servicer
may elect to succeed to any rights and obligations of the Servicer under each
Subservicing Agreement or may terminate each Subservicing Agreement. If it has
elected to assume the Subservicing Agreement, the Securities Administrator or
the successor Servicer shall be deemed to have assumed all of the Servicer's
interest therein and to have replaced the Servicer as a party to any
Subservicing Agreement entered into by the Servicer as contemplated by Section
3.02 to the same extent as if the Subservicing Agreement had been assigned to
the assuming party except that the Servicer shall not be relieved of any
liability or obligations under any such Subservicing Agreement.
The Servicer that is no longer the Servicer hereunder shall, upon
request of the Securities Administrator, but at the expense of the Servicer,
deliver to the assuming party all documents and records relating to each
Subservicing Agreement or substitute servicing agreement and the Mortgage Loans
then being serviced thereunder and an accounting of amounts collected or held by
it and otherwise use its best efforts to effect the orderly and efficient
transfer of such substitute Subservicing Agreement to the assuming party. The
Securities Administrator shall be entitled to be reimbursed from the Servicer
(or the Trust if the Servicer is unable to fulfill its obligations hereunder)
for all Servicing Transfer Costs.
Section 3.08. Collection of Mortgage Loan Payments; Servicer
Custodial Account and Certificate Account. (a) Continuously from the date hereof
until the principal and interest on all Mortgage Loans are paid in full, the
Servicer will proceed diligently, in accordance with this Agreement, to collect
all payments due under each of the Mortgage Loans it services when the same
shall become due and payable. Further, the Servicer will in accordance with all
applicable law and Customary Servicing Procedures ascertain and estimate taxes,
assessments, fire and hazard insurance premiums, mortgage insurance premiums and
all other charges with respect to the Mortgage Loans it services that, as
provided in any Mortgage, will become due and payable to the end that the
installments payable by the Mortgagors will be sufficient to pay such charges as
and when they become due and payable. Consistent with the foregoing, the
Servicer may in its discretion (i) waive any late payment charge or any
prepayment charge or penalty interest in connection with the prepayment of a
Mortgage Loan it services and (ii) extend the due dates for payments due on a
Mortgage Note for a period not greater than 120 days; provided, however, that
the Servicer cannot extend the maturity of any such Mortgage Loan past the date
on which the final payment is due on the latest maturing Mortgage Loan as of the
Cut-Off Date. In the event of any such arrangement, the Servicer shall make
Periodic Advances on the related Mortgage Loan in accordance with the provisions
of Section 3.20 during the scheduled period in accordance with the amortization
schedule of such Mortgage Loan without modification thereof by reason of such
arrangements. The Servicer shall not be required to institute or join in
litigation with respect to collection of any payment (whether under a Mortgage,
Mortgage Note or otherwise or against any public or governmental authority with
respect to a taking or condemnation) if it reasonably believes that enforcing
the provision of the Mortgage or other instrument pursuant to which such payment
is required is prohibited by applicable law.
(b) The Servicer shall establish and maintain the Servicer Custodial
Account. The Servicer shall deposit or cause to be deposited into the Servicer
Custodial Account, all on a daily basis within one Business Day of receipt,
except as otherwise specifically provided herein, the following payments and
collections remitted by Subservicers or received by the Servicer in respect of
the Mortgage Loans subsequent to the Cut-Off Date (other than in respect of
principal and interest due on the Mortgage Loans on or before the Cut-Off Date)
and the following amounts required to be deposited hereunder with respect to the
Mortgage Loans it services:
(i) all payments on account of principal of the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans, net
of the Servicing Fee;
(iii) (A) all Insurance Proceeds and Liquidation Proceeds, other
than Insurance Proceeds to be (1) applied to the restoration or repair of
the Mortgaged Property, (2) released to the Mortgagor in accordance with
Customary Servicing Procedures or (3) required to be deposited to an
Escrow Account pursuant to Section 3.09(a), and other than any Excess
Proceeds and (B) any Insurance Proceeds released from an Escrow Account
pursuant to Section 3.09(b)(iv);
(iv) any amount required to be deposited by the Servicer pursuant to
Section 3.08(d) in connection with any losses on Permitted Investments
with respect to the Servicer Custodial Account;
(v) any amounts required to be deposited by the Servicer pursuant to
Section 3.14;
(vi) Periodic Advances made by the Servicer pursuant to Section 3.20
and any Compensating Interest; and (vii) any other amounts required to be
deposited hereunder.
The foregoing requirements for deposits to the Servicer Custodial
Account by the Servicer shall be exclusive. If the Servicer shall deposit in the
Servicer Custodial Account any amount not required to be deposited, it may at
any time withdraw or direct the institution maintaining the Servicer Custodial
Account to withdraw such amount from the Servicer Custodial Account, any
provision herein to the contrary notwithstanding. The Servicer Custodial Account
may contain funds that belong to one or more trust funds created for mortgage
pass-through certificates of other series and may contain other funds respecting
payments on mortgage loans belonging to the Servicer or serviced by the Servicer
on behalf of others. Notwithstanding such commingling of funds, the Servicer
shall keep records that accurately reflect the funds on deposit in the Servicer
Custodial Account that have been identified by it as being attributable to the
Mortgage Loans it services. The Servicer shall maintain adequate records with
respect to all withdrawals made pursuant to this Section 3.08. All funds
required to be deposited in the Servicer Custodial Account shall be held in
trust for the Certificateholders until withdrawn in accordance with Section
3.11.
(c) The Securities Administrator shall establish and maintain, on
behalf of the Certificateholders, the Certificate Account. The Securities
Administrator shall, promptly upon receipt, deposit in the Certificate Account
and retain therein the following:
(i) the aggregate amount remitted by the Servicer to the Securities
Administrator pursuant to Section 3.11(a)(viii);
(ii) any amount paid by the Securities Administrator pursuant to
Section 3.08(d) in connection with any losses on Permitted Investments
with respect to the Certificate Account; and
(iii) any other amounts deposited hereunder which are required to be
deposited in the Certificate Account.
If the Servicer shall remit any amount not required to be remitted,
it may at any time direct the 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
deposited in error in the Certificate Account. All funds required to be
deposited in the Certificate Account shall be held by the Securities
Administrator in trust for the Certificateholders until disbursed in accordance
with this Agreement or withdrawn in accordance with Section 3.11. In no event
shall the Securities Administrator incur liability for withdrawals from the
Certificate Account at the direction of a the Servicer.
(d) Each institution at which the Servicer Custodial Account or the
Certificate Account is maintained shall invest the funds therein as directed in
writing by the Servicer, in the case of the Servicer Custodial Account, or the
Securities Administrator, in the case of the Certificate Account, in Permitted
Investments, which shall mature not later than (i) in the case of the Servicer
Custodial Account, the Business Day next preceding the related Remittance Date
(except that if such Permitted Investment is an obligation of the institution
that maintains such account, then such Permitted Investment shall mature not
later than such Remittance Date) and (ii) in the case of the Certificate
Account, the Business Day next preceding the Distribution Date (except that if
such Permitted Investment is an obligation of the institution that maintains
such account, then such Permitted Investment shall mature not later than such
Distribution Date) and, in each case, shall not be sold or disposed of prior to
its maturity. All such Permitted Investments shall be made in the name of the
Trustee, for the benefit of the Certificateholders. All Servicer Custodial
Account Reinvestment Income shall be for the benefit of the Servicer as part of
its Servicing Compensation and shall be retained by it monthly as provided
herein. All income or gain (net of any losses) realized from any such investment
of funds on deposit in the Certificate Account shall be for the benefit of the
Securities Administrator as compensation and shall be retained by it monthly as
provided herein. The amount of any losses realized in the Servicer Custodial
Account or the Certificate Account incurred in any such account in respect of
any such investments shall promptly be deposited by the Servicer in the Servicer
Custodial Account or by the Securities Administrator in the Certificate Account,
as applicable.
(e) The Servicer shall give notice to the Securities Administrator
of any proposed change of the location of the Servicer Custodial Account
maintained by the Servicer not later than 30 days and not more than 45 days
prior to any change thereof. The Securities Administrator shall give notice to
the Trustee, the Servicer, each Rating Agency and the Depositor of any proposed
change of the location of the Certificate Account not later than 30 days after
and not more than 45 days prior to any change thereof. The creation of the
Servicer Custodial Account shall be evidenced by a certification substantially
in the form of Exhibit F hereto. A copy of such certification shall be furnished
to the Securities Administrator.
Section 3.09. Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.
(a) To the extent required by the related Mortgage Note and not
violative of current law, the Servicer shall segregate and hold all funds
collected and received pursuant to each Mortgage Loan which constitute Escrow
Payments in trust separate and apart from any of its own funds and general
assets and for such purpose shall establish and maintain one or more escrow
accounts (collectively, the "Escrow Account"), titled "[Insert name of
Servicer], in trust for registered holders of Banc of America Funding
Corporation Mortgage Pass-Through Certificates, Series 2003-1 and various
Mortgagors." The Escrow Account shall be established with a commercial bank, a
savings bank or a savings and loan association that meets the guidelines set
forth by FNMA or FHLMC as an eligible institution for escrow accounts and which
is a member of the Automated Clearing House. In any case, the Escrow Account
shall be insured by the FDIC to the fullest extent permitted by law. The
Servicer shall deposit in the appropriate Escrow Account on a daily basis, and
retain therein: (i) all Escrow Payments collected on account of the Mortgage
Loans, (ii) all amounts representing proceeds of any hazard insurance policy
which are to be applied to the restoration or repair of any related Mortgaged
Property and (iii) all amounts representing proceeds of any Primary Mortgage
Insurance Policy. Nothing herein shall require the Servicer to compel a
Mortgagor to establish an Escrow Account in violation of applicable law.
(b) Withdrawals of amounts so collected from the Escrow Accounts may
be made by the Servicer only (i) to effect timely payment of taxes, assessments,
mortgage insurance premiums, fire and hazard insurance premiums, condominium or
PUD association dues, or comparable items constituting Escrow Payments for the
related Mortgage, (ii) to reimburse the Servicer out of related Escrow Payments
made with respect to a Mortgage Loan for any Servicing Advance made by the
Servicer pursuant to Section 3.09(c) with respect to such Mortgage Loan, (iii)
to refund to any Mortgagor any sums determined to be overages, (iv) for transfer
to the Servicer Custodial Account upon default of a Mortgagor or in accordance
with the terms of the related Mortgage Loan and if permitted by applicable law,
(v) for application to restore or repair the Mortgaged Property, (vi) to pay to
the Mortgagor, to the extent required by law, any interest paid on the funds
deposited in the Escrow Account, (vii) to pay to itself any interest earned on
funds deposited in the Escrow Account (and not required to be paid to the
Mortgagor), (viii) to the extent permitted under the terms of the related
Mortgage Note and applicable law, to pay late fees with respect to any Monthly
Payment which is received after the applicable grace period, (ix) to withdraw
suspense payments that are deposited into the Escrow Account, (x) to withdraw
any amounts inadvertently deposited in the Escrow Account or (xi) to clear and
terminate the Escrow Account upon the termination of this Agreement in
accordance with Section 10.01. Any Escrow Account shall not be a part of the
Trust Estate.
(c) With respect to each Mortgage Loan, the Servicer shall maintain
accurate records reflecting the status of taxes, assessments and other charges
which are or may become a lien upon the Mortgaged Property and the status of
Primary Mortgage Insurance Policy premiums and fire and hazard insurance
coverage. The Servicer shall obtain, from time to time, all bills for the
payment of such charges (including renewal premiums) and shall effect payment
thereof prior to the applicable penalty or termination date and at a time
appropriate for securing maximum discounts allowable, employing for such purpose
deposits of the Mortgagor in the Escrow Account, if any, which shall have been
estimated and accumulated by the Servicer in amounts sufficient for such
purposes, as allowed under the terms of the Mortgage. To the extent that a
Mortgage does not provide for Escrow Payments, the Servicer shall determine that
any such payments are made by the Mortgagor. The Servicer assumes full
responsibility for the timely payment of all such bills and shall effect timely
payments of all such bills irrespective of each Mortgagor's faithful performance
in the payment of same or the making of the Escrow Payments. The Servicer shall
advance any such payments that are not timely paid, but the Servicer shall be
required so to advance only to the extent that such Servicing Advances, in the
good faith judgment of the Servicer, will be recoverable by the Servicer out of
Insurance Proceeds, Liquidation Proceeds or otherwise.
Section 3.10. Access to Certain Documentation and Information
Regarding the Mortgage Loans.
The Servicer shall 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 Servicer.
Upon reasonable advance notice in writing, the Servicer will provide
to each Certificateholder which is a savings and loan association, bank or
insurance company certain reports and reasonable access to information and
documentation regarding the Mortgage Loans sufficient to permit such
Certificateholder to comply with applicable regulations of the OTS or other
regulatory authorities with respect to investment in the Certificates; provided
that the Servicer shall be entitled to be reimbursed by each such
Certificateholder for actual expenses incurred by the Servicer in providing such
reports and access.
Section 3.11. Permitted Withdrawals from the Servicer Custodial
Account and Certificate Account.
(a) The Servicer may from time to time make withdrawals from the
Servicer Custodial Account, for the following purposes:
(i) to pay to the Servicer (to the extent not previously retained),
the Servicing Compensation to which it is entitled pursuant to Section
3.17;
(ii) to reimburse the Servicer for unreimbursed Advances made by it,
such right of reimbursement pursuant to this clause (ii) being limited to
amounts received on the Mortgage Loan(s) in respect of which any such
Advance was made;
(iii) to reimburse the Servicer for any Nonrecoverable Advance
previously made;
(iv) to reimburse the Servicer for Insured Expenses from the related
Insurance Proceeds;
(v) to pay to the purchaser, with respect to each Mortgage Loan or
REO Property that has been purchased pursuant to Section 2.02, all amounts
received thereon after the date of such purchase;
(vi) to reimburse the Servicer or the Depositor for expenses
incurred by any of them and reimbursable pursuant to Section 7.03;
(vii) to withdraw any amount deposited in the Servicer Custodial
Account and not required to be deposited therein;
(viii) on or prior to the Remittance Date, to withdraw an amount
equal to the Pool Distribution Amount and any other amounts due to the
Securities Administrator under this Agreement for such Distribution Date,
to the extent on deposit, and remit such amount in immediately available
funds to the Securities Administrator for deposit in the Certificate
Account; and
(ix) to clear and terminate the Servicer Custodial Account upon
termination of this Agreement pursuant to Section 10.01.
The Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Servicer Custodial Account pursuant to clauses (i), (ii),
(iv) and (v). Prior to making any withdrawal from the Servicer Custodial Account
pursuant to clause (iii), the Servicer shall deliver to the Securities
Administrator an Officer's Certificate of a Servicing Officer indicating the
amount of any previous Advance determined by the Servicer to be a Nonrecoverable
Advance and identifying the related Mortgage Loan(s) and their respective
portions of such Nonrecoverable Advance.
In connection with any failure by the Servicer to make any
remittance required to be made by the Servicer to the Certificate Account on the
day and by the time such remittance is required to be made under this Agreement
(without giving effect to any grace or cure period), the Servicer shall pay the
Securities Administrator for the account of the Securities Administrator
interest at the rate published in The Wall Street Journal as the "Prime Rate" on
any amount not timely remitted from and including the day such remittance was
required to be made to, but not including, the day on which such remittance was
actually made.
(b) The Securities Administrator shall withdraw funds from the
Certificate Account for distributions to Certificateholders in the manner
specified in this Agreement. In addition, the Securities Administrator may from
time to time make withdrawals from the Certificate Account for the following
purposes:
(i) to pay to itself and the Trustee any amounts due to the
Securities Administrator and the Trustee under this Agreement (including
all amounts provided for under Section 9.11);
(ii) to pay to itself as compensation earnings on or investment
income with respect to funds in the Certificate Account;
(iii) to withdraw and return to the Servicer any amount deposited in
the Certificate Account and not required to be deposited therein; and
(iv) to clear and terminate the Certificate Account upon termination
of the Agreement pursuant to Section 10.01.
Section 3.12. Maintenance of Hazard Insurance.
The Servicer shall cause to be maintained for each Mortgage Loan,
fire and hazard insurance with extended coverage customary in the area where the
Mortgaged Property is located in an amount which is at least equal to the lesser
of (a) the full insurable value of the Mortgaged Property or (b) the greater of
(i) the outstanding principal balance owing on the Mortgage Loan and (ii) an
amount such that the proceeds of such insurance shall be sufficient to avoid the
application to the Mortgagor or loss payee of any coinsurance clause under the
policy. If the Mortgaged Property is in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards (and such flood insurance has been made available) the Servicer will
cause to be maintained a flood insurance policy meeting the requirements of the
current guidelines of the Federal Insurance Administration and the requirements
of FNMA or FHLMC. The Servicer shall also maintain on REO Property, fire and
hazard insurance with extended coverage in an amount which is at least equal to
the maximum insurable value of the improvements which are a part of such
property, liability insurance and, to the extent required, flood insurance in an
amount required above. Any amounts collected by the Servicer under any such
policies (other than amounts to be deposited in an Escrow Account and applied to
the restoration or repair of the property subject to the related Mortgage or
property acquired in liquidation of the Mortgage Loan, or to be released to the
Mortgagor in accordance with Customary Servicing Procedures) shall be deposited
in the Servicer Custodial Account, subject to withdrawal pursuant to Section
3.11(a). It is understood and agreed that no earthquake or other additional
insurance need be required by the Servicer of any Mortgagor or maintained on REO
Property, other than pursuant to such applicable laws and regulations as shall
at any time be in force and as shall require such additional insurance. All
policies required hereunder shall be endorsed with standard mortgagee clauses
with loss payable to the Servicer, and shall provide for at least 30 days prior
written notice of any cancellation, reduction in amount or material change in
coverage to the Servicer.
The hazard insurance policies for each Mortgage Loan secured by a
unit in a condominium development or planned unit development shall be
maintained with respect to such Mortgage Loan and the related development in a
manner which is consistent with FNMA requirements.
Notwithstanding the foregoing, the Servicer may maintain a blanket
policy insuring against hazard losses on all of the Mortgaged Properties
relating to the Mortgage Loans in lieu of maintaining the required hazard
insurance policies for each Mortgage Loan and may maintain a blanket policy
insuring against special flood hazards in lieu of maintaining any required flood
insurance. Any such blanket policies shall (A) be consistent with prudent
industry standards, (B) name the Servicer as loss payee, (C) provide coverage in
an amount equal to the aggregate unpaid principal balance on the related
Mortgage Loans without co-insurance, and (D) otherwise comply with the
requirements of this Section 3.12. Any such blanket policy may contain a
deductible clause; provided that if any Mortgaged Property is not covered by a
separate policy otherwise complying with this Section 3.12 and a loss occurs
with respect to such Mortgaged Property which loss would have been covered by
such a policy, the Servicer shall deposit in the Servicer Custodial Account the
difference, if any, between the amount that would have been payable under a
separate policy complying with this Section 3.12 and the amount paid under such
blanket policy.
Section 3.13. Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
(a) Except as otherwise provided in this Section 3.13, when any
Mortgaged Property subject to a Mortgage has been conveyed by the Mortgagor, the
Servicer shall use reasonable efforts, to the extent that it has actual
knowledge of such conveyance, to enforce any due-on-sale clause contained in any
Mortgage Note or Mortgage, to the extent permitted under applicable law and
governmental regulations, but only to the extent that such enforcement will not
adversely affect or jeopardize coverage under any Required Insurance Policy.
Notwithstanding the foregoing, the Servicer is not required to exercise such
rights with respect to a Mortgage Loan if the Person to whom the related
Mortgaged Property has been conveyed or is proposed to be conveyed satisfies the
terms and conditions contained in the Mortgage Note and Mortgage related thereto
and the consent of the mortgagee under such Mortgage Note or Mortgage is not
otherwise required under such Mortgage Note or Mortgage as a condition to such
transfer. If (i) the Servicer is prohibited by law from enforcing any such
due-on-sale clause, (ii) coverage under any Required Insurance Policy would be
adversely affected, (iii) the Mortgage Note does not include a due-on-sale
clause or (iv) nonenforcement is otherwise permitted hereunder, the Servicer is
authorized, subject to Section 3.13(b), to take or enter into an assumption and
modification agreement from or with the Person to whom such Mortgaged Property
has been or is about to be conveyed, pursuant to which such Person becomes
liable under the Mortgage Note and, unless prohibited by applicable state law,
the Mortgagor remains liable thereon; provided that the Mortgage Loan shall
continue to be covered (if so covered before the Servicer enters such agreement)
by the applicable Required Insurance Policies. The Servicer, subject to Section
3.13(b), is also authorized with the prior approval of the insurers under any
Required Insurance Policies to enter into a substitution of liability agreement
with such Person, pursuant to which the original Mortgagor is released from
liability and such Person is substituted as Mortgagor and becomes liable under
the Mortgage Note. Notwithstanding the foregoing, the Servicer shall not be
deemed to be in default under this Section 3.13 by reason of any transfer or
assumption which the Servicer reasonably believes it is restricted by law from
preventing, for any reason whatsoever.
(b) Subject to the Servicer's duty to enforce any due-on-sale clause
to the extent set forth in Section 3.13(a), in any case in which a Mortgaged
Property has been conveyed to a Person by a Mortgagor, and such Person is to
enter into an assumption agreement or modification agreement or supplement to
the Mortgage Note or Mortgage that requires the signature of the Trustee, or if
an instrument of release signed by the Trustee is required releasing the
Mortgagor from liability on the Mortgage Loan, the Servicer shall prepare and
deliver or cause to be prepared and delivered to the Securities Administrator,
who will forward to the Trustee for signature and shall direct, in writing, the
Trustee to execute the assumption agreement with the Person to whom the
Mortgaged Property is to be conveyed and such modification agreement or
supplement to the Mortgage Note or Mortgage or other instruments as are
reasonable or necessary to carry out the terms of the Mortgage Note or Mortgage
or otherwise to comply with any applicable laws regarding assumptions or the
transfer of the Mortgaged Property to such Person. In no event shall the Trustee
incur liability for executing any document under this Section 3.13 at the
direction of the Servicer. In connection with any such assumption, no material
term of the Mortgage Note may be changed. In addition, the substitute Mortgagor
and the Mortgaged Property must be acceptable to the Servicer in accordance with
its underwriting standards as then in effect. Together with each such
substitution, assumption or other agreement or instrument delivered to the
Securities Administrator and forwarded to the Trustee for execution by the
Trustee, the Servicer shall deliver an Officer's Certificate signed by a
Servicing Officer stating that the requirements of this subsection have been
met. The Servicer shall notify the Securities Administrator and the Trustee that
any such substitution or assumption agreement has been completed by forwarding
to the Securities Administrator, who shall forward a copy to the Trustee (or at
the direction of the Trustee, the Custodian) the original of such substitution
or assumption agreement, which in the case of the original shall be added to the
related Mortgage File and shall, for all purposes, be considered a part of such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof. Any fee collected by the Servicer for entering into
an assumption or substitution of liability agreement may be retained by the
Servicer as additional master servicing compensation. Notwithstanding the
foregoing, to the extent permissible under applicable law and at the request of
the Servicer, the Trustee shall execute and deliver to the Servicer any powers
of attorney and other documents prepared by the Servicer that are reasonably
necessary or appropriate to enable the Servicer to execute any assumption
agreement or modification agreement required to be executed by the Trustee under
this Section 3.13.
Section 3.14. Realization Upon Defaulted Mortgage Loans; REO
Property.
(a) The Servicer shall use reasonable efforts to foreclose upon or
otherwise comparably convert the ownership of Mortgaged Properties securing such
of the Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments. In
connection with such foreclosure or other conversion, the Servicer shall follow
Customary Servicing Procedures and shall meet the requirements of the insurer
under any Required Insurance Policy; provided, however, that the Servicer may
enter into a special servicing agreement with an unaffiliated Holder of 100%
Percentage Interest of a Class of Class B Certificates or a holder of a class of
securities representing interests in the Class B Certificates alone or together
with other subordinated mortgage pass-through certificates. Such agreement shall
be substantially in the form attached hereto as Exhibit K or subject to each
Rating Agency's acknowledgment that the ratings of the Certificates in effect
immediately prior to the entering into such agreement would not be qualified,
downgraded or withdrawn and the Certificates would not be placed on credit
review status (except for possible upgrading) as a result of such agreement. Any
such agreement may contain provisions whereby such holder may instruct the
Servicer to commence or delay foreclosure proceedings with respect to delinquent
Mortgage Loans and will contain provisions for the deposit of cash by the holder
that would be available for distribution to Certificateholders if Liquidation
Proceeds are less than they otherwise may have been had the Servicer acted in
accordance with its normal procedures. Notwithstanding the foregoing, the
Servicer shall not be required to expend its own funds in connection with any
foreclosure or towards the restoration of any Mortgaged Property unless it shall
determine (i) that such restoration and/or foreclosure will increase the
proceeds of liquidation of the Mortgage Loan after reimbursement to itself of
such expenses and (ii) that such expenses will be recoverable to it through
proceeds of the liquidation of the Mortgage Loan (respecting which it shall have
priority for purposes of withdrawals from the Servicer Custodial Account). Any
such expenditures shall constitute Servicing Advances for purposes of this
Agreement.
The decision of the Servicer to foreclose on a defaulted Mortgage
Loan shall be subject to a determination by the Servicer that the proceeds of
such foreclosure would exceed the costs and expenses of bringing such a
proceeding.
With respect to any REO Property, the deed or certificate of sale
shall be taken in the name of the Trust for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. The
name of the Trust shall be placed on the title to such REO Property. The
Servicer shall ensure that the title to such REO Property references this
Agreement. Pursuant to its efforts to sell such REO Property, the Servicer shall
either itself or through an agent selected by the Servicer manage, conserve,
protect and operate such REO Property in the same manner that it manages,
conserves, protects and operates other foreclosed property for its own account
and in the same manner that similar property in the same locality as the REO
Property is managed. Incident to its conservation and protection of the
interests of the Certificateholders, the Servicer may rent the same, or any part
thereof, as the Servicer deems to be in the best interest of the
Certificateholders for the period prior to the sale of such REO Property. The
Servicer shall prepare for and deliver to the Securities Administrator a
statement with respect to each REO Property that has been rented, if any,
showing the aggregate rental income received and all expenses incurred in
connection with the management and maintenance of such REO Property at such
times as is necessary to enable the Trustee to comply with the reporting
requirements of the REMIC Provisions; provided, however, that the Servicer shall
have no duty to rent any REO Property on behalf of the Trust. The net monthly
rental income, if any, from such REO Property shall be deposited in the Servicer
Custodial Account no later than the close of business on each Determination
Date. The Servicer shall perform, with respect to the Mortgage Loans, the tax
reporting and withholding required by Sections 1445 and 6050J of the Code with
respect to foreclosures and abandonments, the tax reporting required by Section
6050H of the Code with respect to the receipt of mortgage interest from
individuals and, if required by Section 6050P of the Code with respect to the
cancellation of indebtedness by certain financial entities, by preparing such
tax and information returns as may be required, in the form required. The
Servicer shall deliver copies of such reports to the Securities Administrator.
If the Trust acquires any Mortgaged Property as described above or
otherwise in connection with a default or a default which is reasonably
foreseeable on a Mortgage Loan, the Servicer shall dispose of such Mortgaged
Property prior to the end of the third calendar year following the year of its
acquisition by the Trust (such period, the "REO Disposition Period") unless (A)
the Securities Administrator, on behalf of the Trustee, and the Trustee shall
have been supplied by the Servicer with an Opinion of Counsel to the effect that
the holding by the Trust of such Mortgaged Property subsequent to the REO
Disposition Period will not result in the imposition of taxes on "prohibited
transactions" (as defined in Section 860F of the Code) on the REMIC or cause the
Trust Estate to fail to qualify as a REMIC at any time that any Certificates are
outstanding, or (B) the Securities Administrator, on behalf of the Trustee (at
the Servicer's expense), or the Servicer shall have applied for, prior to the
expiration of the REO Disposition Period, an extension of the REO Disposition
Period in the manner contemplated by Section 856(e)(3) of the Code. If such an
Opinion of Counsel is provided or such an exemption is obtained, the Trust may
continue to hold such Mortgaged Property (subject to any conditions contained in
such Opinion of Counsel) for the applicable period. Notwithstanding any other
provision of this Agreement, no Mortgaged Property acquired by the Trust shall
be rented (or allowed to continue to be rented) or otherwise used for the
production of income by or on behalf of the Trust in such a manner or pursuant
to any terms that would (i) cause such Mortgaged Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or
(ii) subject the REMIC to the imposition of any federal, state or local income
taxes on the income earned from such Mortgaged Property under Section 860G(c) of
the Code or otherwise, unless the Servicer has agreed to indemnify and hold
harmless the Trust with respect to the imposition of any such taxes. The
Servicer shall identify to the Securities Administrator any Mortgaged Property
relating to a Mortgage Loan held by the Trust for 30 months for which no plans
to dispose of such Mortgaged Property by the Servicer have been made. After
delivery of such identification, the Servicer shall proceed to dispose of any
such Mortgaged Property by holding a commercially reasonable auction for such
property.
The income earned from the management of any REO Properties, net of
reimbursement to the Servicer for expenses incurred (including any property or
other taxes) in connection with such management and net of unreimbursed
Servicing Fees, Periodic Advances and Servicing Advances, shall be applied to
the payment of principal of and interest on the related defaulted Mortgage Loans
(solely for the purposes of allocating principal and interest, interest shall be
treated as accruing as though such Mortgage Loans were still current) and all
such income shall be deemed, for all purposes in this Agreement, to be payments
on account of principal and interest on the related Mortgage Notes and shall be
deposited into the Servicer Custodial Account. To the extent the net income
received during any calendar month is in excess of the amount attributable to
amortizing principal and accrued interest at the related Mortgage Interest Rate
on the related Mortgage Loan for such calendar month, such excess shall be
considered to be a partial prepayment of principal of the related Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well as any
income from an REO Property, will be applied in the following order of priority:
first, to reimburse the Servicer for any related unreimbursed Servicing Advances
and Servicing Fees; second, to reimburse the Servicer for any unreimbursed
Periodic Advances and to reimburse the Servicer Custodial Account for any
Nonrecoverable Advances (or portions thereof) that were previously withdrawn by
the Servicer pursuant to Section 3.11(a)(iii) that related to such Mortgage
Loan; third, to accrued and unpaid interest (to the extent no Periodic Advance
has been made for such amount or any such Periodic Advance has been reimbursed)
on the Mortgage Loan or related REO Property, at the Mortgage Rate to the Due
Date occurring in the month in which such amounts are required to be
distributed; and fourth, as a recovery of principal of the Mortgage Loan. Excess
Proceeds, if any, from the liquidation of a Liquidated Mortgage Loan will be
retained by the Servicer as additional servicing compensation pursuant to
Section 3.17.
(b) The Servicer shall promptly notify the Depositor of any Mortgage
Loan which comes into default. The Depositor shall be entitled, at its option,
to repurchase any such defaulted Mortgage Loan from the Trust Estate if (a) in
the Depositor's judgment, the default is not likely to be cured by the Mortgagor
and (b) such Mortgage Loan is 180 days or more delinquent. The purchase price
for any such Mortgage Loan shall be 100% of the unpaid principal balance of such
Mortgage Loan plus accrued interest thereon at the Mortgage Interest Rate (less
the Servicing Fee Rate for such Mortgage Loan) through the last day of the month
in which such repurchase occurs. Upon the receipt of such purchase price, the
Servicer shall provide to the Securities Administrator the notification required
by Section 3.15 and the Securities Administrator or the Custodian shall promptly
release to the Depositor the Mortgage File relating to the Mortgage Loan being
repurchased.
Section 3.15. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Servicer or the Securities Administrator will
immediately notify the Trustee (or, at the direction of the Trustee, the
Custodian) by delivering, or causing to be delivered, two copies (one of which
will be returned to the Servicer with the Mortgage File) of a Request for
Release (which may be delivered in an electronic format acceptable to the
Trustee and the Servicer or the Securities Administrator). Upon receipt of such
request, the Trustee or the Custodian, as applicable, shall within seven
Business Days release the related Mortgage File to the Servicer. The Trustee
shall at the Servicer's direction execute and deliver to the Servicer the
request for reconveyance, deed of reconveyance or release or satisfaction of
mortgage or such instrument releasing the lien of the Mortgage, in each case
provided by the Servicer, together with the Mortgage Note with written evidence
of cancellation thereon. If the Mortgage has been recorded in the name of MERS
or its designee, the Servicer shall take all necessary action to reflect the
release of the Mortgage on the records of MERS. Expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be chargeable
to the related Mortgagor. From time to time and as shall be appropriate for the
servicing or foreclosure of any Mortgage Loan, including for such purpose
collection under any policy of flood insurance, any fidelity bond or errors or
omissions policy, or for the purposes of effecting a partial release of any
Mortgaged Property from the lien of the Mortgage or the making of any
corrections to the Mortgage Note or the Mortgage or any of the other documents
included in the Mortgage File, the Trustee or the Custodian, as applicable,
shall, upon delivery to the Trustee (or, at the direction of the Trustee, the
Custodian) of a Request for Release signed by a Servicing Officer, release the
Mortgage File within seven Business Days to the Servicer. Subject to the further
limitations set forth below, the Servicer shall cause the Mortgage File so
released to be returned to the Trustee or the Custodian, as applicable, when the
need therefor by the Servicer no longer exists, unless the Mortgage Loan is
liquidated and the proceeds thereof are deposited in the Servicer Custodial
Account, in which case the Servicer shall deliver to the Trustee or the
Custodian, as applicable, a Request for Release, signed by a Servicing Officer.
The Trustee shall execute and deliver to the Servicer any powers of
attorney and other documents prepared by the Servicer that are reasonably
necessary or appropriate in the judgment of the Trustee to enable the Servicer
to carry out its servicing and administrative duties under this Agreement, upon
the request of the Servicer. In addition, upon prepayment in full of any
Mortgage Loan or the receipt of notice that funds for such purpose have been
placed in escrow, the Servicer is authorized to give, as attorney-in-fact for
the Trustee and the mortgagee under the Mortgage, an instrument of satisfaction
(or Assignment of Mortgage without recourse) regarding the Mortgaged Property
relating to such Mortgage Loan, which instrument of satisfaction or Assignment
of Mortgage, as the case may be, shall be delivered to the Person entitled
thereto against receipt of the prepayment in full. If the Mortgage is registered
in the name of MERS or its designee, the Servicer shall take all necessary
action to reflect the release on the records of MERS. In lieu of executing such
satisfaction or Assignment of Mortgage, or if another document is required to be
executed by the Trustee, the Servicer may deliver or cause to be delivered to
the Trustee, for signature, as appropriate, any court pleadings, requests for
trustee's sale or other documents necessary to effectuate such foreclosure or
any legal action brought to obtain judgment against the Mortgagor on the
Mortgage Note or the Mortgage or to obtain a deficiency judgment or to enforce
any other remedies or rights provided by the Mortgage Note or the Mortgage or
otherwise available at law or in equity.
Section 3.16. Documents, Records and Funds in Possession of the
Servicer to be Held for the Trustee.
The Servicer shall transmit to the Trustee or, at the direction of
the Trustee, the Custodian as required by this Agreement all documents and
instruments in respect of a Mortgage Loan coming into the possession of the
Servicer from time to time and shall account fully to the Trustee for any funds
received by the Servicer or which otherwise are collected by the Servicer as
Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan. The
documents constituting the Servicing File shall be held by the Servicer as
custodian and bailee for the Trustee. All Mortgage Files and funds collected or
held by, or under the control of, the Servicer in respect of any Mortgage Loans,
whether from the collection of principal and interest payments or from
Liquidation Proceeds, including but not limited to, any funds on deposit in the
Servicer Custodial Account, shall be held by the Servicer for and on behalf of
the Trustee and shall be and remain the sole and exclusive property of the
Trustee, subject to the applicable provisions of this Agreement. The Servicer
also agrees that it shall not knowingly create, incur or subject any Mortgage
File or any funds that are deposited in the Servicer Custodial Account,
Certificate Account or any Escrow Account, or any funds that otherwise are or
may become due or payable to the Trustee for the benefit of the
Certificateholders, to any claim, lien, security interest, judgment, levy, writ
of attachment or other encumbrance created by the Servicer, or assert by legal
action or otherwise any claim or right of setoff against any Mortgage File or
any funds collected on, or in connection with, a Mortgage Loan, except, however,
that the Servicer shall be entitled to set off against and deduct from any such
funds any amounts that are properly due and payable to the Servicer under this
Agreement.
Section 3.17. Servicing Compensation.
The Servicer shall be entitled out of each payment of interest on a
Mortgage Loan (or portion thereof) and included in the Trust Estate to retain or
withdraw from the Servicer Custodial Account an amount equal to the Servicing
Fee for such Distribution Date.
Additional servicing compensation in the form of Excess Proceeds,
prepayment penalties, assumption fees, late payment charges and all income and
gain net of any losses realized from Permitted Investments and all other
customary and ancillary income and fees shall be retained by the Servicer to the
extent not required to be deposited in the Servicer Custodial Account pursuant
to Section 3.08(b). The Servicer shall be required to pay all expenses incurred
by it in connection with its servicing activities hereunder and shall not be
entitled to reimbursement therefor except as specifically provided in this
Agreement.
Notwithstanding the foregoing, with respect to the payment of the
Servicing Fee on any Distribution Date, the aggregate Servicing Fee for the
Servicer for such Distribution Date shall be reduced (but not below zero) by an
amount equal to the lesser of (a) the Prepayment Interest Shortfall for such
Distribution Date relating to the Mortgage Loans and (b) one-twelfth of 0.25% of
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date (any such reduction, "Compensating Interest").
Section 3.18. Annual Statement as to Compliance.
The Servicer shall deliver to the Securities Administrator (and the
Securities Administrator will forward to the Trustee and each Rating Agency), no
later than February 28 following the end of each calendar year commencing with
February 2004, an Officer's Certificate stating, as to the signer thereof, that
(a) a review of the activities of the Servicer during the preceding calendar
year and of the performance of the Servicer under this Agreement or similar
agreements has been made under such officer's supervision, and (b) to the best
of such officer's knowledge, based on such review, the Servicer has fulfilled
all its obligations under this Agreement throughout such year, or, if there has
been a default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof.
Section 3.19. Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
No later than February 28 following the end of each calendar year
commencing with February 2004, the Servicer shall, at its own expense, cause a
firm of independent public accountants (who may also render other services to
the Servicer or any affiliate thereof) which is a member of the American
Institute of Certified Public Accountants to furnish a statement to the
Securities Administrator to the effect that such firm has with respect to the
Servicer's overall servicing operations, examined such operations in accordance
with the requirements of the Uniform Single Attestation Program for Mortgage
Bankers, stating such firm's conclusions relating thereto.
Section 3.20. Advances.
The Servicer shall determine on or before each Servicer Advance Date
whether it is required to make a Periodic Advance pursuant to the definition
thereof. If the Servicer determines it is required to make a Periodic Advance,
it shall, on or before the Servicer Advance Date, either (a) deposit into the
Servicer Custodial Account an amount equal to the Advance and/or (b) make an
appropriate entry in its records relating to the Servicer Custodial Account that
any portion of the Amount Held for Future Distribution in the Servicer Custodial
Account has been used by the Servicer in discharge of its obligation to make any
such Periodic Advance. Any funds so applied shall be replaced by the Servicer by
deposit in the Servicer Custodial Account no later than the close of business on
the Business Day preceding the next Servicer Advance Date. The Servicer shall be
entitled to be reimbursed from the Servicer Custodial Account for all Advances
of its own funds made pursuant to this Section 3.20 as provided in Section
3.11(a). The obligation to make Periodic Advances with respect to any Mortgage
Loan shall continue until the ultimate disposition of the REO Property or
Mortgaged Property relating to such Mortgage Loan. The Servicer shall inform the
Securities Administrator of the amount of the Periodic Advance to be made by the
Servicer on each Servicer Advance Date no later than the related Remittance
Date.
The Servicer shall deliver to the Securities Administrator on the
related Servicer Advance Date an Officer's Certificate of a Servicing Officer
indicating the amount of any proposed Periodic Advance determined by the
Servicer to be a Nonrecoverable Advance. Notwithstanding anything to the
contrary, the Servicer shall not be required to make any Periodic Advance or
Servicing Advance that would be a Nonrecoverable Advance. Section
3.21. Modifications, Waivers, Amendments and Consents.
(a) Subject to this Section 3.21, the Servicer may agree to any
modification, waiver, forbearance, or amendment of any term of any Mortgage Loan
without the consent of the Securities Administrator, the Trustee or any
Certificateholder. All modifications, waivers, forbearances or amendments of any
Mortgage Loan shall be in writing and shall be consistent with Customary
Servicing Procedures.
(b) The Servicer shall not agree to enter into, and shall not enter
into, any modification, waiver (other than a waiver referred to in Section 3.13,
which waiver, if any, shall be governed by Section 3.13), forbearance or
amendment of any term of any Mortgage Loan if such modification, waiver,
forbearance, or amendment would:
(i) affect the amount or timing of any related payment of principal,
interest or other amount payable thereunder;
(ii) in the Servicer's judgment, materially impair the security for
such Mortgage Loan or reduce the likelihood of timely payment of amounts
due thereon; or
(iii) otherwise constitute a "significant modification" within the
meaning of Treasury Regulations Section 1.860G-2(b);
unless, in either case, (A) such Mortgage Loan is 90 days or more past due or
(B) the Servicer delivers to the Securities Administrator an Opinion of Counsel
to the effect that such modification, waiver, forbearance or amendment would not
affect the REMIC status of the Trust Estate and, in either case, such
modification, waiver, forbearance or amendment is reasonably likely to produce a
greater recovery with respect to such Mortgage Loan than would liquidation.
Subject to Customary Servicing Procedures, the Servicer may permit a forbearance
for a Mortgage Loan which in the Servicer's judgment is subject to imminent
default.
(c) Any payment of interest, which is deferred pursuant to any
modification, waiver, forbearance or amendment permitted hereunder, shall not,
for purposes hereof, including, without limitation, calculating monthly
distributions to Certificateholders, be added to the unpaid principal balance of
the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan
or such modification, waiver or amendment so permit.
(d) The Servicer may, as a condition to granting any request by a
Mortgagor for consent, modification, waiver, forbearance or amendment, the
granting of which is within the Servicer's discretion pursuant to the Mortgage
Loan and is permitted by the terms of this Agreement, require that such
Mortgagor pay to the Servicer, as additional servicing compensation, a
reasonable or customary fee for the additional services performed in connection
with such request, together with any related costs and expenses incurred by the
Servicer, which amount shall be retained by the Servicer as additional servicing
compensation.
(e) The Servicer shall notify the Securities Administrator, in
writing, of any modification, waiver, forbearance or amendment of any term of
any Mortgage Loan and the date thereof, and shall deliver to the Trustee (or, at
the direction of the Trustee, the Custodian) for deposit in the related Mortgage
File, an original counterpart of the agreement relating to such modification,
waiver, forbearance or amendment, promptly (and in any event within ten Business
Days) following the execution thereof; provided, however, that if any such
modification, waiver, forbearance or amendment is required by applicable law to
be recorded, the Servicer (i) shall deliver to the Trustee (or, at the direction
of the Trustee, the Custodian) a copy thereof and (ii) shall deliver to the
Trustee (or, at the direction of the Trustee, the Custodian) such document, with
evidence of notification upon receipt thereof from the public recording office.
Section 3.22. Reports to the Securities and Exchange Commission.
(a) The Securities Administrator and the Servicer shall reasonably
cooperate with the Depositor in connection with the Trust's satisfying its
reporting requirements under the Exchange Act. Without limiting the generality
of the foregoing, the Securities Administrator shall prepare on behalf of the
Trust any monthly Current Reports on Form 8-K (each, a "Monthly Form 8-K") and
Annual Reports on Form 10-K (each, a "Form 10-K") customary for similar
securities as required by the Exchange Act and the rules and regulations of the
Securities and Exchange Commission thereunder, and the Securities Administrator
shall sign and file (via the Securities and Exchange Commission's Electronic
Data Gathering and Retrieval System) such Forms (other than any Annual Report on
Form 10-K, which shall be signed by the Depositor) on behalf of the Trust.
(b) Each Monthly Form 8-K shall be filed by the Securities
Administrator within 15 days after each Distribution Date, including a copy of
the monthly statement to Certificateholders delivered pursuant to Section
5.04(b) (each, a "Distribution Date Statement") for such Distribution Date as an
exhibit thereto. Prior to March 30th of each year (or such earlier date as may
be required by the Exchange Act and the rules and regulations of the Securities
and Exchange Commission), the Securities Administrator shall file a Form 10-K,
in substance as required by applicable law or applicable Securities and Exchange
Commission staff's interpretations. Such Form 10-K shall include as exhibits the
Servicer's annual statement of compliance described under Section 3.18 and the
accountant's report described under Section 3.19, in each case, to the extent
they have been timely delivered to the Securities Administrator. If they are not
so timely delivered, the Securities Administrator shall file an amended Form
10-K including such documents as exhibits reasonably promptly after they are
delivered to the Securities Administrator. The Securities Administrator shall
have no liability with respect to any failure to properly prepare or file such
periodic reports resulting from or relating to the Securities Administrator's
inability or failure to obtain any information not resulting from its own
negligence, willful misconduct or bad faith. The Form 10-K shall also include a
certification in the form attached hereto as Exhibit O (the "Certification"),
which shall be signed by a senior officer of the Depositor in charge of
securitization. The Depositor shall deliver the Certification to the Securities
Administrator three (3) Business Days prior to the latest date on which the Form
10-K may be timely filed. The Securities Administrator, the Depositor and the
Servicer shall reasonably cooperate to enable the Securities and Exchange
Commission requirements with respect to the Trust to be met in the event that
the Securities and Exchange Commission issues additional interpretive guidelines
or promulgates rules or regulations, or in the event of any other change of law
that would require reporting arrangements or the allocation of responsibilities
with respect thereto, as described in this Section 3.22, to be conducted or
allocated in a different manner.
(c) Prior to the latest date on which the Form 10-K may be timely
filed each year, the Securities Administrator shall sign and deliver to the
Depositor a certification (in the form attached hereto as Exhibit P) for the
benefit of the Depositor and its officers, directors and Affiliates (provided,
however, that the Securities Administrator shall not undertake an analysis of
the accountant's report attached as an exhibit to the Form 10-K). In addition,
the Securities Administrator shall indemnify and hold harmless the Depositor and
its officers, directors and Affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon any
inaccuracy in the certification provided by the Securities Administrator
pursuant to this Section 3.22(c), any breach of the Securities Administrator's
obligations under this Section 3.22(c) or the Securities Administrator's
negligence, bad faith or willful misconduct in connection therewith. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Depositor and its officers, directors and affiliates, then the
Securities Administrator agrees that it shall contribute to the amount paid or
payable by the Depositor, its officers, directors or affiliates as a result of
the losses, claims, damages or liabilities of the Depositor, its officers,
directors or affiliates in such proportion as is appropriate to reflect the
relative fault of the Depositor and its officers, directors and affiliates on
the one hand and the Securities Administrator on the other in connection with a
breach of the Securities Administrator's obligations under this Section 3.22(c)
or the Securities Administrator's negligence, bad faith or willful misconduct in
connection therewith. The Servicer hereby acknowledges and agrees that the
Depositor and the Securities Administrator are relying on the Servicer's
performance of its obligations under Sections 3.18 and 3.19 in order to perform
their respective obligations under this Section 3.22.
(d) Prior to the latest date on which the Form 10-K may be timely
filed each year, the Servicer shall sign and deliver to the Depositor a
certification (in the form attached hereto as Exhibit Q) for the benefit of the
Depositor and its officers, directors and Affiliates. In addition, the Servicer
shall indemnify and hold harmless the Depositor, and its officers, directors and
Affiliates from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other costs
and expenses arising out of or based upon any inaccuracy in the certification
provided by the Servicer pursuant to this Section 3.22(d), any breach of the
Servicer's obligations under this Section 3.22(d) or the Servicer's negligence,
bad faith or willful misconduct in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless the
Depositor and its officers, directors and affiliates, then the Servicer agrees
that it shall contribute to the amount paid or payable by the Depositor, its
officers, directors or affiliates as a result of the losses, claims, damages or
liabilities of the Depositor, its officers, directors or affiliates in such
proportion as is appropriate to reflect the relative fault of the Depositor and
its officers, directors and affiliates on the one hand and the Servicer on the
other in connection with a breach of the Servicer's obligations under this
Section 3.22(d) or the Servicer's negligence, bad faith or willful misconduct in
connection therewith.
(e) Upon any filing with the Securities and Exchange Commission, the
Securities Administrator shall promptly deliver to the Depositor a copy of any
such executed report, statement or information.
(f) The obligations set forth in paragraphs (a) through (e) of this
Section shall only apply with respect to periods for which the Securities
Administrator is obligated to file reports on Form 8-K or 10-K pursuant to
paragraph (b) of this Section. As soon as permitted under applicable law, unless
otherwise instructed by the Depositor, the Securities Administrator shall
prepare, execute and file with the Securities and Exchange Commission a Form 15
Suspension Notification with respect to the Trust, and thereafter there shall be
no further obligations under paragraphs (a) through (d) of this Section
commencing with the fiscal year in which the Form 15 is filed (other than the
obligations to be performed in such fiscal year that relate back to the prior
fiscal year).
Section 3.23. Buy-Down Account; Application of Buy-Down Funds.
In addition to the Servicer Custodial Account, if any of the
Mortgage Loans are Buy-Down Mortgage Loans, the Servicer shall establish and
maintain a Buy-Down Account, which is not part of the Trust Estate, and shall
deposit therein all Buy-Down Funds not later than the Business Day following the
day of receipt and posting by the Servicer. The Servicer shall keep and maintain
a separate account for each Buy-Down Mortgage Loan for the purpose of accounting
for deposits to and withdrawals from the Buy-Down Account. The Servicer shall
invest the funds in the Buy-Down Account in investments which are Permitted
Investments. All income and gain realized from any such investment, to the
extent not required by the applicable Buy-Down Agreements to be applied to pay
interest on the related Buy-Down Mortgage Loans, shall be for the benefit of the
Servicer. The amount of any losses incurred in respect of such investments shall
be deposited in the Buy-Down Account by the Servicer out of its own funds
immediately as realized.
With respect to each Buy-Down Mortgage Loan, on the Business Day
next following receipt of the Mortgagor's required monthly payment under the
related Buy-Down Agreement, the Servicer shall withdraw from the Buy-Down
Account and deposit in immediately available funds in the Servicer Custodial
Account an amount which, when added to such Mortgagor's payment, will equal the
full monthly payment due under the related Mortgage Note.
Upon termination of a Buy-Down Agreement, no further Buy-Down Funds
relating thereto shall be deposited into the Servicer Custodial Account, and the
Servicer may withdraw the related Buy-Down Funds which remain in the Buy-Down
Account and distribute such funds as provided by such Buy-Down Agreement.
ARTICLE IV
SERVICER'S CERTIFICATE
Section 4.01. Servicer's Certificate.
Each month, not later than 12:00 noon Eastern time on the 12th
calendar day of such month (or if such day is not a Business Day, the following
Business Day, the Servicer shall deliver to the Securities Administrator, a
Servicer's Certificate (in substance and format mutually acceptable to the
Servicer and the Securities Administrator) certified by a 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
Servicer's Certificate for all purposes hereunder and shall have no duty to
verify or re-compute any of the information contained therein.
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01. Distributions. On each Distribution Date, based solely
on the information in the Servicer's Certificate, the Securities Administrator
shall distribute out of the Certificate Account (to the extent funds are
available therein) to each Certificateholder of record on the related Record
Date (other than as provided in Section 10.01 respecting the final distribution)
(a) by check mailed to such Certificateholder entitled to receive a distribution
on such Distribution Date at the address appearing in the Certificate Register,
or (b) upon written request by the Holder of a Regular Certificate, by wire
transfer or by such other means of payment as such Certificateholder and the
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
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.
Section 5.02. Priorities of Distributions.
(a) On each Distribution Date, based solely on the information
contained in the Servicer's Certificate, 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
Securities Administrator and the Trustee pursuant to Sections 3.11(b)(i) and the
amounts payable to the Securities Administrator pursuant to Section 3.11(b)(ii)
and shall pay such funds to itself and the Trustee, as applicable, and (2) the
Pool Distribution Amount, in an amount as specified in written notice received
by the Securities Administrator from the Servicer no later than the Business Day
following the related Determination Date, and shall apply such funds from the
Certificate Account to distributions on the Certificates in the following order
of priority and to the extent of such funds:
(i) to each Class of Senior Certificates (other than the Class A-PO
Certificates), an amount allocable to interest equal to the Interest
Distribution Amount for such Class and any shortfall being allocated among
such Classes in proportion to the amount of the Interest Distribution
Amount that would have been distributed in the absence of such shortfall
(ii) concurrently to the Class A Certificates (other than the Class
A-PO Certificates) and the Class A-PO Certificates, pro rata, based on
their respective Senior Principal Distribution Amount and PO Principal
Amount, (A) to the Class A Certificates (other than the Class A-PO
Certificates), in an aggregate amount up to the Senior Principal
Distribution Amount, such distribution to be allocated among such Classes
in accordance with Section 5.02(b) and (B) to the Class A-PO Certificates
in an aggregate amount up to the PO Principal Amount;
(iii) to the Class A-PO Certificates, any Class A-PO Deferred
Amount, up to the Subordinate Principal Distribution Amount for such
Distribution Date from amounts otherwise distributable first to the Class
B-6 Certificates pursuant to clause (iv)(L) below, second to the Class B-5
Certificates pursuant to clause (iv)(J) below, third to the Class B-4
Certificates pursuant to clause (iv)(H) below, fourth to the Class B-3
Certificates pursuant to clause (iv)(F) below, fifth to the Class B-2
Certificates pursuant to clause (iv)(D) below and finally to the Class B-1
Certificates pursuant to clause (iv)(B) below;
(iv) to each Class of Subordinate Certificates, subject to paragraph
(d) below, in the following order of priority:
(A) to the Class B-1 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(B) to the Class B-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class A-PO Deferred Amount pursuant
to clause (iii) above until the Class Certificate Balance thereof
has been reduced to zero;
(C) to the Class B-2 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(D) to the Class B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class A-PO Deferred Amount pursuant
to clause (iii) above until the Class Certificate Balance thereof
has been reduced to zero;
(E) to the Class B-3 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(F) to the Class B-3 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class A-PO Deferred Amount pursuant
to clause (iii) above until the Class Certificate Balance thereof
has been reduced to zero;
(G) to the Class B-4 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(H) to the Class B-4 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class A-PO Deferred Amount pursuant
to clause (iii) above until the Class Certificate Balance thereof
has been reduced to zero;
(I) to the Class B-5 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(J) to the Class B-5 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class A-PO Deferred Amount pursuant
to clause (iii) above until the Class Certificate Balance thereof
has been reduced to zero;
(K) to the Class B-6 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date; and
(L) to the Class B-6 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class A-PO Deferred Amount pursuant
to clause (iii) above until the Class Certificate Balance thereof
has been reduced to zero; and
(v) to the Holder of the Class A-R Certificate, any remaining Pool
Distribution Amount.
On any Distribution Date, amounts distributed in respect of Class
A-PO Deferred Amounts will not reduce the Class Certificate Balance of the Class
A-PO Certificates.
All distributions in respect of the Interest Distribution Amount for
a Class will be applied first with respect to the amount payable pursuant to
clause (i) of the definition of "Interest Distribution Amount," and second with
respect to the amount payable pursuant to clause (ii) of such definition.
(b) On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Class A Certificates (other than
the Class A-PO Certificates) pursuant to Section 5.02(a)(ii) for such
Distribution Date, will be distributed, sequentially, to the Class A-R and Class
A-1 Certificates, in that order, until their Class Certificate Balances have
been reduced to zero.
On each Distribution Date on or after the Senior Credit Support
Depletion Date, notwithstanding the allocation and priority set forth above, the
portion of the Pool Distribution Amount available to be distributed as principal
of the Class A Certificates (other than the Class A-PO Certificates) shall be
distributed concurrently, as principal, on such Classes, pro rata, on the basis
of their respective Class Certificate Balances, until the Class Certificate
Balances thereof are reduced to zero.
(c) On each Distribution Date, Accrued Certificate Interest for each
Class of Certificates for such Distribution Date (other than the Class A-PO
Certificates) shall be reduced by such Class' pro rata share, based on such
Class' Interest Distribution Amount for such Distribution Date, without taking
into account the allocation made by this Section 5.02(c), of (A) Non-Supported
Interest Shortfalls, (B) on and after the Senior Credit Support Depletion Date,
any other Realized Loss on the Mortgage Loans allocable to interest and (C)
Relief Act Reductions incurred on the Mortgage Loans during the calendar month
preceding the month of such Distribution Date.
(d) Notwithstanding the priority and allocation contained in Section
5.02(a)(iv), if with respect to any Class of Subordinate Certificates on any
Distribution Date, (i) the aggregate of the Class Certificate Balances
immediately prior to such Distribution Date of all Classes of Subordinate
Certificates which have a higher numerical Class designation than such Class,
divided by (ii) the aggregate Class Certificate Balance of all the Certificates
(other than the Class A-PO Certificates) immediately prior to such Distribution
Date (the "Fractional Interest") is less than the Original Fractional Interest
for such Class, no distribution of principal will be made to any Classes junior
to such Class (the "Restricted Classes") and the Class Certificate Balances of
the Restricted Classes will not be used in determining the Pro Rata Share for
the Subordinate Certificates that are not Restricted Classes. If the aggregate
Class Certificate Balance of the Subordinate Certificates that are not
Restricted Classes is reduced to zero, notwithstanding the previous sentence,
any funds remaining will be distributed sequentially to the Restricted Classes
in order of their respective numerical Class designations (beginning with the
Class of Restricted Certificates then outstanding with the lowest numerical
Class designation).
(e) On each Distribution Date, the Securities Administrator shall distribute any
Reimbursement Amount sequentially to the Classes of Certificates then
outstanding which bore the loss to which such Reimbursement Amount relates
beginning with the most senior of such Classes of Certificates, up to, with
respect to each Class, the amount of loss borne by such Class. Any Reimbursement
Amount remaining after the application described in the preceding sentence shall
remain part of the Pool Distribution Amount.
Section 5.03. Allocation of Losses.
(a) On or prior to each Determination Date, the Servicer shall
inform the Securities Administrator in writing with respect to each Mortgage
Loan: (1) whether any Realized Loss is a Deficient Valuation or a Debt Service
Reduction, (2) of the amount of such loss or Deficient Valuation, or of the
terms of such Debt Service Reduction and (3) of the total amount of Realized
Losses. Based on such information, the Securities Administrator shall determine
the total amount of Realized Losses with respect to the related Distribution
Date.
The principal portion of Realized Losses with respect to any
Distribution Date shall be allocated as follows:
(i) the applicable PO Percentage of the principal portion of any
Realized Loss with respect to a Discount Mortgage Loan shall be allocated
to the Class A-PO Certificates until the Class Certificate Balance thereof
is reduced to zero; and
(ii) the applicable Non-PO Percentage of the principal portion of
any Realized Loss shall be allocated first to the Subordinate Certificates
in reverse order of their respective numerical Class designations
(beginning with the Class of Subordinate Certificates then outstanding
with the highest numerical Class designation) until the respective Class
Certificate Balance of each such Class is reduced to zero, and second to
the Senior Certificates (other than the Class A-PO Certificates), pro
rata, on the basis of their respective Class Certificate Balances
immediately prior to the related Distribution Date, until the Class
Certificate Balances thereof have been reduced to zero; and
(b) The Class Certificate Balance of the Class A-PO Certificates
shall be reduced on each Distribution Date by the amount, if any, by which the
Class Certificate Balance of the Class A-PO Certificates (after giving effect to
the amount to be distributed as a distribution of principal and the allocation
of Realized Losses on such Distribution Date) exceeds the Adjusted Pool Amount
(PO Portion) for such Distribution Date.
The Class Certificate Balance of the Class of Subordinate
Certificates then outstanding with the highest numerical Class designation shall
be reduced on each Distribution Date by the amount, if any, by which the
aggregate of the Class Certificate Balances of all outstanding Classes of
Certificates (after giving effect to the amount to be distributed as a
distribution of principal and the allocation of Realized Losses and Class A-PO
Deferred Amounts on such Distribution Date) exceeds the Adjusted Pool Amount for
such Distribution Date.
After the Senior Credit Support Depletion Date, the Class
Certificate Balances of the Senior Certificates in the aggregate (other than the
Class Certificate Balance of the Class A-PO Certificates) shall be reduced on
each Distribution Date by the amount, if any, by which the aggregate of the
Class Certificate Balances of all outstanding Classes of Senior Certificates
(other than Class A-PO Certificates) (after giving effect to the amount to be
distributed as a distribution of principal and the allocation of Realized Losses
on such Distribution Date) exceeds the difference between (i) the Adjusted Pool
Amount for such Distribution Date and (ii) the Adjusted Pool Amount (PO Portion)
for such Distribution Date.
Any such reduction shall be allocated among the Senior Certificates
(other than the Class A-PO Certificates) based on the Class Certificate Balances
immediately prior to such Distribution Date
(c) Any Realized Loss allocated to a Class of Certificates or any
reduction in the Class Certificate Balance of a Class of Certificates pursuant
to Section 5.03(b) above shall be allocated among the Certificates of such Class
in proportion to their respective Percentage Interests.
(d) The calculation of the amount to be distributed as principal to
any Class of 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 Certificates shall be made subsequent to the
allocation of Realized Losses for such Distribution Date. In the event that
after the allocation of Realized Losses for a Distribution Date, the Calculated
Principal Distribution for a Class of Subordinate Certificates is greater than
the Class Certificate Balance of such Class, the excess shall be distributed
first, sequentially, to the Classes of Subordinate Certificates then outstanding
(beginning with the Class of Subordinate Certificates than outstanding with the
lowest numerical designation) until the respective Class Certificate Balance of
each such Class is reduced to zero and then to the Class A Certificates, pro
rata, in accordance with the priorities set forth in Section 5.02.
Section 5.04. Statements to Certificateholders.
(a) Prior to the Distribution Date in each month, based upon the
information provided to the Securities Administrator on the Servicer's
Certificates delivered to the Securities Administrator pursuant to Section 4.01,
the Securities Administrator shall determine the following information with
respect to such Distribution Date:
(i) the amount allocable to principal, separately identifying the
aggregate amount of any Principal Prepayments and Liquidation Proceeds
included therein;
(ii) the amount allocable to interest, the Accrual Distribution
Amount, any Class Unpaid Interest Shortfall included in such distribution
and any remaining Class Unpaid Interest Shortfall after giving effect to
such distribution;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the amount
of the shortfall and the allocation thereof as between principal and
interest;
(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on such Distribution
Date;
(v) the Pool Stated Principal Balance for the following Distribution
Date;
(vi) the Senior Percentage, the Priority Percentage and the
Subordinate Percentage for the following Distribution Date;
(vii) the amount of the Servicing Fee paid to or retained by the
Servicer with respect to such Distribution Date;
(viii) the Pass-Through Rate for each such Class of Certificates
with respect to such Distribution Date;
(ix) the amount of Periodic Advances included in the distribution on
such Distribution Date and the aggregate amount of Periodic Advances
outstanding as of the close of business on such Distribution Date;
(x) the number and aggregate principal amounts of Mortgage Loans (A)
delinquent (exclusive of Mortgage Loans in foreclosure) (1) 1 to 30 days
(2) 31 to 60 days (3) 61 to 90 days and (4) 91 or more days and (B) in
foreclosure, as of the close of business on the last day of the calendar
month preceding such Distribution Date;
(xi) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Stated Principal
Balance of such Mortgage Loan as of the close of business on the
Determination Date preceding such Distribution Date and the date of
acquisition thereof;
(xii) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the
Determination Date preceding such Distribution Date;
(xiii) the Senior Prepayment Percentage and the Subordinate
Prepayment Percentage for the following Distribution Date;
(xiv) the aggregate amount of Realized Losses incurred during the
preceding calendar month or any Class A-PO Deferred Amounts for such
Distribution Date;
(xv) the Class A-WIO Notional Amount for such Distribution Date.
(b) No later than each Distribution Date, the Securities
Administrator, based upon information supplied to it on the Servicer's
Certificates, shall make available to each Holder of a Certificate, each Rating
Agency and the Servicer a statement setting forth the information set forth in
Section 5.04(a).
In the case of information furnished pursuant to clauses (i), (ii)
and (ix) of Section 5.04(a), the amounts shall be expressed as a dollar amount
per Certificate with a $1,000 denomination.
On each Distribution Date, the Securities Administrator shall
prepare and furnish 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 information contained in the
statement described in Section 5.04(a) for such Distribution Date.
The Securities Administrator will make the monthly statement to
Certificateholders (and, at its option, any additional files containing the same
information in an alternative format) available each month to
Certificateholders, and other parties to this Agreement via the Securities
Administrator's Internet website. The Securities Administrator's Internet
website shall initially be located at "xxx.xxxxxxx.xxx." Assistance in using the
website can be obtained by calling the Securities Administrator's customer
service desk at (000) 000-0000. Parties that are unable to use the website are
entitled to have a paper copy mailed to them via first class mail by calling the
customer service desk and indicating such. The 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 (i) and (ii) of Section 5.04(a), in each case aggregated for such
calendar year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the 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
Holders of the Residual Certificate for quarterly notices on Schedule Q (Form
1066) (which information shall be forwarded to the Holders 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 the 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 the REMIC, 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.
Section 5.05. Tax Returns and Reports to Certificateholders.
(a) For federal income tax purposes, the REMIC shall have a calendar
year taxable year and shall maintain its books on the accrual method of
accounting.
(b) The Securities Administrator shall prepare or cause to be
prepared, shall cause to be timely signed by the Trustee, and shall file or
cause to be filed with the Internal Revenue Service and applicable state or
local tax authorities income tax information returns for each taxable year with
respect to the REMIC containing such information at the times and in the manner
as may be required by the Code, the Treasury Regulations or state or local tax
laws, regulations, or rules, and shall furnish or cause to be furnished to the
REMIC and the Certificateholders the schedules, statements or information at
such times and in such manner as may be required thereby. Within 30 days of the
Closing Date, the Securities Administrator shall furnish or cause to be
furnished to the Internal Revenue Service, on Form 8811 or as otherwise required
by the Code or the Treasury Regulations, the name, title, address and telephone
number of the person that Holders of the Certificates may contact for tax
information relating thereto, together with such additional information at the
time or times and in the manner required by the Code or the Treasury
Regulations. Such federal, state, or local income tax or information returns
shall be signed by the Trustee, or such other Person as may be required to sign
such returns by the Code, the Treasury Regulations or state or local tax laws,
regulations, or rules.
(c) In the first federal income tax return of the REMIC for its
short taxable year ending December 31, 2003, 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 the REMIC, including but not limited to
records relating to the income, expenses, assets and liabilities of the Trust
Estate, and the initial fair market value and adjusted basis of the Trust Estate
property and assets determined at such intervals as may be required by the Code
or the Treasury Regulations, as may be necessary to prepare the foregoing
returns, schedules, statements or information.
Section 5.06. Tax Matters Person. The Tax Matters Person shall have
the same duties with respect to the REMIC as those of a "tax matters partner"
under Subchapter C of Chapter 63 of Subtitle F of the Code. The Holder of the
Class A-R Certificate is hereby designated as the Tax Matters Person for the
REMIC. By acceptance of the Class 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 REMIC.
Section 5.07. 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 5.08. REMIC Related Covenants. For as long as the Trust
shall exist, the Trustee, the Securities Administrator, the Depositor and the
Servicer shall act in accordance herewith to assure continuing treatment of the
Trust Estate as a REMIC and avoid the imposition of tax on the REMIC. In
particular:
(a) Neither the Securities Administrator nor the Trustee shall
create, or permit the creation of, any "interests" in the REMIC within the
meaning of Code Section 860D(a)(2) other than the interests represented by the
Regular Certificates and the Residual Certificate.
(b) Except as otherwise provided in the Code, (i) the Depositor and
the Servicer shall not contribute to the Trust Estate and the Trustee shall not
accept property unless substantially all of the property held in the REMIC
constitutes either "qualified mortgages" or "permitted investments" as defined
in Code Sections 860G(a)(3) and (5), respectively, and (ii) no property shall be
contributed to the REMIC after the start-up day unless such contribution would
not subject the Trust Estate to the 100% tax on contributions to a REMIC after
the start-up day of the REMIC imposed by Code Section 860G(d).
(c) The Securities Administrator, on behalf of the Trustee, shall
not accept on behalf of the REMIC any fee or other compensation for services and
none of the Securities Administrator, the Trustee or the Servicer shall
knowingly accept, on behalf of the Trust Estate any income from assets other
than those permitted to be held by a REMIC.
(d) Neither the Securities Administrator, on behalf of 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 3.14(b)), unless
such sale is pursuant to a "qualified liquidation" of the 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 on a calendar year taxable year and on an accrual basis.
None of the 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 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
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 the REMIC and will not disqualify the Trust Estate from treatment as a
REMIC; and, provided further, that the Servicer shall have demonstrated to the
satisfaction of the 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.
ARTICLE VI
THE CERTIFICATES
Section 6.01. The Certificates. The Classes of Senior Certificates
and the Subordinate Certificates shall be substantially in the forms set forth
in Exhibits X-0, X-XX, X-X, A-WIO, X-0, X-0, X-0, X-0, X-0, B-6 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 Senior Certificates (other than
the Class A-PO, Class A-WIO and Class A-R Certificates) shall be available to
investors in interests representing minimum dollar Certificate Balances (or
notional amounts) of $1,000 and integral multiples of $1 in excess thereof. The
Class A-WIO Certificates shall be available to investors in interests
representing minimum dollar notional amounts of $10,000,000 and integral
multiples of $1,000 in excess thereof. The Class A-PO and Subordinate
Certificates shall be available to investors in interests representing minimum
dollar Certificate Balances (or notional amounts) of $25,000 and integral dollar
multiples of $1 in excess thereof. The Class A-R Certificate shall be in a
minimum denomination of $100. The Senior Certificates (other than the Class A-R
Certificate) and the Class B-1, Class B-2 and Class B-3 Certificates shall
initially be issued in book-entry form through the Depository and delivered to
the Depository or, pursuant to the Depository's instructions on behalf of the
Depository to, and deposited with, the Certificate Custodian, and all other
Classes of Certificates shall initially be issued in definitive,
fully-registered form.
The Certificates shall be executed by manual or facsimile signature
on behalf of the 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
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 be fully
protected in relying upon information furnished by the Depository with
respect to its Depository Participants and furnished by the Depository
Participants with respect to indirect participating firms and persons
shown on the books of such indirect participating firms as direct or
indirect Certificate Owners.
(ii) All transfers by Certificate Owners of Book-Entry Certificates
shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing such Certificate
Owner. Each Depository Participant shall only transfer Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for
which it acts as agent in accordance with the Depository's normal
procedures.
(iii) If (A) (1) the Depository or the Depositor advises the
Securities Administrator in writing that the Depository is no longer
willing or able to properly discharge its responsibilities as Depository,
and (2) the Securities Administrator or the Depositor is unable to locate
a qualified successor, (B) the Depositor at its option advises the
Securities Administrator in writing that it elects to terminate the
book-entry system through the Depository or (C) after the occurrence of an
Event of Default, Certificate Owners representing at least 51% of the
aggregate Class Certificate Balances of the Book-Entry Certificates
together advise the Securities Administrator and the Depository through
the Depository Participants in writing that the continuation of a
book-entry system through the Depository is no longer in the best
interests of the Certificate Owners, the Securities Administrator shall
notify all Certificate Owners, through the Depository, of the occurrence
of any such event and of the availability of definitive, fully-registered
Certificates (the "Definitive Certificates") to 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 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, (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 clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both. The Depositor shall provide to
any Holder of a Private Certificate and any prospective transferees designated
by any such Holder, information regarding the related Certificates and the
Mortgage Loans and such other information as shall be necessary to satisfy the
condition to eligibility set forth in Rule 144A(d)(4) for transfer of any such
certificate without registration thereof under the 1933 Act pursuant to the
registration exemption provided by Rule 144A. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the 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.
(e) No transfer of an ERISA Restricted Certificate shall be made
unless the transferee delivers to the Securities Administrator either (i) a
representation letter in the form of Exhibit H from the transferee of such
Certificate, which representation letter shall not be an expense of the
Depositor, the Trustee, the Securities Administrator or the Servicer, or (ii) in
the case of any ERISA Restricted Certificate presented for registration in the
name of an employee benefit plan or arrangement, including an individual
retirement account, subject to ERISA, the Code, or any federal, state or local
law ("Similar Law") which is similar to ERISA or the Code (collectively, a
"Plan"), or a trustee or custodian of any of the foregoing, an Opinion of
Counsel in form and substance satisfactory to the Securities Administrator and
the Servicer to the effect that the purchase or holding of such ERISA Restricted
Certificate by or on behalf of such Plan will not result in the assets of the
Trust Estate being deemed to be "plan assets" and subject to the prohibited
transaction provisions of ERISA, the Code or Similar Law and will not subject
the Trustee, the Depositor, the Securities Administrator or the Servicer to any
obligation in addition to those undertaken in this Agreement, which Opinion of
Counsel shall not be an expense of the Securities Administrator, the Trustee or
the Servicer. Any transferee of an ERISA Restricted Certificate that does not
comply with either clause (i) or (ii) of the preceding sentence will be deemed
to have made one of the representations set forth in Exhibit H. For purposes of
clause (i) of the second preceding sentence, such representation shall be deemed
to have been made to the Certificate Registrar by the acceptance by a
Certificate Owner of a Book-Entry Certificate of the beneficial interest in any
such Class of ERISA-Restricted Certificates, unless the Certificate Registrar
shall have received from the transferee an alternative representation acceptable
in form and substance to the Depositor. Notwithstanding anything else to the
contrary herein, any purported transfer of an ERISA Restricted Certificate to or
on behalf of a Plan without the delivery to the Securities Administrator and the
Servicer of an Opinion of Counsel satisfactory to the Securities Administrator
and the Servicer 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 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 a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Securities Administrator of any change or impending change in
its status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Residual
Certificate unless such Ownership Interest is a pro rata undivided
interest.
(iii) In connection with any proposed transfer of any Ownership
Interest in a Residual Certificate, the Securities Administrator shall
require delivery to it, in form and substance satisfactory to it, of an
affidavit in the form of Exhibit I hereto from the proposed transferee.
(iv) Notwithstanding the delivery of an affidavit by a proposed
transferee under clause (iii) above, if a Responsible Officer of the
Securities Administrator has actual knowledge that the proposed transferee
is not a Permitted Transferee, no transfer of any Ownership Interest in a
Residual Certificate to such proposed transferee shall be effected.
(v) No Ownership Interest in a Residual Certificate may be purchased
by or transferred to any Person that is not a U.S. Person, unless (A) such
Person holds such Residual Certificate in connection with the conduct of a
trade or business within the United States and furnishes the transferor
and the 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 a Residual
Certificate will not be disregarded for federal income tax purposes.
(vi) Any attempted or purported transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
6.02 shall be absolutely null and void and shall vest no rights in the
purported transferee. If any purported transferee shall, in violation of
the provisions of this Section 6.02, become a Holder of a Residual
Certificate, then the prior Holder of such Residual Certificate that is a
Permitted Transferee shall, upon discovery that the registration of
transfer of such Residual Certificate was not in fact permitted by this
Section 6.02, be restored to all rights as Holder thereof retroactive to
the date of registration of transfer of such Residual Certificate. The
Securities Administrator shall be under no liability to any Person for any
registration of transfer of a Residual Certificate that is in fact not
permitted by this Section 6.02 or for making any distributions due on such
Residual Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of the Agreement so long as
the transfer was registered in accordance with this Section 6.02. The
Securities Administrator shall be entitled to recover from any Holder of a
Residual Certificate that was in fact not a Permitted Transferee at the
time such distributions were made all distributions made on such Residual
Certificate. Any such distributions so recovered by the Securities
Administrator shall be distributed and delivered by the Securities
Administrator to the prior Holder of such Residual Certificate that is a
Permitted Transferee.
(vii) If any Person other than a Permitted Transferee acquires any
Ownership Interest in a Residual Certificate in violation of the
restrictions in this Section 6.02, then the Securities Administrator,
based on information provided to the Securities Administrator by the
Servicer, will provide to the Internal Revenue Service, and to the Persons
specified in Section 860E(e)(3) and (6) of the Code, information needed to
compute the tax imposed under Section 860E(e) of the Code on transfers of
residual interests to disqualified organizations. The expenses of the
Securities Administrator under this clause (vii) shall be reimbursable by
the Trust.
(viii) No Ownership Interest in a Residual Certificate shall be
acquired by a Plan or any Person acting on behalf of a Plan.
(g) [Reserved]
(h) No service charge shall be imposed for any transfer or exchange
of Certificates of any Class, but the 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.
(i) All Certificates surrendered for transfer and exchange shall be
destroyed by the Certificate Registrar.
Section 6.03. Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Certificate Registrar or the
Certificate Registrar receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate, and (b) there is delivered to the 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 Servicer, the
Trustee, the Securities Administrator, the Certificate Registrar and any agent
of the Depositor, the 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 Servicer, the Trustee, the Securities
Administrator, the Certificate Registrar or any agent of the Servicer, the
Trustee, the Securities Administrator or the Certificate Registrar shall be
affected by notice to the contrary.
ARTICLE VII
THE DEPOSITOR AND THE SERVICER
Section 7.01. Respective Liabilities of the Depositor and the
Servicer. The Depositor and the Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by the Depositor and the Servicer herein. By way of
illustration and not limitation, the Depositor is not liable for the servicing
and administration of the Mortgage Loans, nor is it obligated by Section 8.01 to
assume any obligations of the Servicer or to appoint a designee to assume such
obligations, nor is it liable for any other obligation hereunder that it may,
but is not obligated to, assume unless it elects to assume such obligation in
accordance herewith.
Section 7.02. Merger or Consolidation of the Depositor or the
Servicer. The Depositor and the Servicer will each keep in full effect its
existence, rights and franchises as a separate entity under the laws governing
its organization, and will each obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
Any Person into which the Depositor or the Servicer may be merged or
consolidated, or any corporation resulting from any merger or consolidation to
which the Depositor or the Servicer shall be a party, or any Person succeeding
to the business of the Depositor or the Servicer, shall be the successor of the
Depositor or the Servicer, as the case may be, hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however, that
the successor or surviving Person to the Servicer shall be qualified to service
mortgage loans on behalf of FNMA or FHLMC.
Section 7.03. Limitation on Liability of the Depositor, the Servicer
and Others. None of the Depositor, the Servicer or any of the directors,
officers, employees or agents of the Depositor or of the Servicer shall be under
any liability to the Trust Estate or the Certificateholders for any action taken
or for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor, the Servicer or any such Person against any
breach of warranties or representations made herein or any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Depositor, the Servicer and any director,
officer, employee or agent of the Depositor or the Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted by
any Person respecting any matters arising hereunder. The Depositor, the Servicer
and any director, officer, employee or agent of the Depositor or the Servicer
shall be indemnified by the Trust Estate and held harmless against any loss,
liability or expense incurred in connection with any legal action relating to
this Agreement or the Certificates, other than any loss, liability or expense
related to any specific Mortgage Loan or Mortgage Loans (except as any such
loss, liability or expense shall be otherwise reimbursable pursuant to this
Agreement) and any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder. Neither of the Depositor nor the Servicer shall be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its respective duties under this Agreement and which in its
opinion may involve it in any expense or liability; provided, however, that the
Depositor or the Servicer may in its discretion undertake any such action which
it may deem necessary or desirable in respect to this Agreement and the rights
and duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Estate, and the Depositor and the Servicer shall be entitled to be
reimbursed therefor out of amounts attributable to the Mortgage Loans on deposit
in the Servicer Custodial Account as provided by Section 3.11.
Section 7.04. Depositor and Servicer Not to Resign. Subject to the
provisions of Section 7.02, neither the Depositor nor the Servicer shall resign
from its respective obligations and duties hereby imposed on it except upon
determination that its duties hereunder are no longer permissible under
applicable law. Any such determination permitting the resignation of the
Depositor or the Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Securities Administrator. No such resignation by the
Servicer shall become effective until the Securities Administrator or a
successor Servicer shall have assumed the Servicer's responsibilities and
obligations in accordance with Section 8.05 hereof.
ARTICLE VIII
DEFAULT
Section 8.01. Events of Default. If any one of the following events
("Events of Default") shall occur and be continuing:
(a) any failure by the Servicer to deposit amounts in the Servicer
Custodial Account in the amount and manner provided herein so as to enable the
Securities Administrator to distribute to Holders of Certificates any payment
required to be made under the terms of such Certificates and this Agreement
(other than the payments required to be made under Section 3.20) which continues
unremedied for a period of five days; or
(b) failure on the part of the Servicer duly to observe or perform
in any material respect any other covenants or agreements of the Servicer set
forth in the Certificates or in this Agreement, which covenants and agreements
continue unremedied for a period of 30 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Securities Administrator, the Trustee or the Depositor,
or to the Servicer, the Depositor, the Securities Administrator and the Trustee
by the Holders of Certificates evidencing Voting Rights aggregating not less
than 25% of all Certificates affected thereby; or
(c) the entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the appointment of
a conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings against the
Servicer, or for the winding up or liquidation of the Servicer's affairs, and
the continuance of any such decree or order unstayed and in effect for a period
of 60 consecutive days; or
(d) the consent by the Servicer to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings of or relating to the Servicer
or of or relating to substantially all of its property; or the Servicer shall
admit in writing its inability to pay its debts generally as they become due,
file a petition to take advantage of any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligations; or
(e) the failure of the Servicer to remit any Periodic Advance
required to be remitted by the Servicer pursuant to Section 3.20 which failure
continues unremedied at 3:00 p.m. on the related Distribution Date;
then, and in each and every such case (other than clause (e) hereof), so long as
an Event of Default shall not have been remedied by the Servicer, either the
Trustee or the Depositor may, and at the direction of the Holders of
Certificates evidencing Voting Rights aggregating not less than 51% of all
Certificates affected thereby shall, by notice then given in writing to the
Servicer (and to the Trustee, if given by the Depositor, and to the Depositor,
if given by the Trustee), terminate all of the rights and obligations of the
Servicer under this Agreement. If an Event of Default described in clause (e)
hereof shall occur, the Trustee shall, by notice to the Servicer and the
Securities Administrator, terminate all of the rights and obligations of the
Servicer under this Agreement and in and to the Mortgage Loans and proceeds
thereof and the Securities Administrator or a successor Servicer appointed
pursuant to Section 8.05 shall make the Advance which the Servicer failed to
make. On or after the receipt by the Servicer of such written notice, all
authority and power of the Servicer under this Agreement, whether with respect
to the Certificates or the Mortgage Loans or otherwise, shall pass to and be
vested in the Securities Administrator pursuant to and under this Section 8.01
and Section 8.05(a), unless and until such time as the Securities Administrator
shall appoint a successor Servicer pursuant to Section 8.05, and, without
limitation, the Securities Administrator is hereby authorized and empowered to
execute and deliver, on behalf of the Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement of the
Mortgage Loans and related documents, or otherwise, including, without
limitation, the recordation of the assignments of the Mortgage Loans to it. The
Servicer agrees to cooperate with the Securities Administrator and the Trustee
in effecting the termination of the responsibilities and rights of the Servicer
hereunder, including, without limitation, the transfer to the Securities
Administrator for the administration by it of all cash amounts that have been
deposited by the Servicer in the Servicer Custodial Account or thereafter
received by the Servicer with respect to the Mortgage Loans. Upon obtaining
notice or knowledge of the occurrence of any Event of Default, the Person
obtaining such notice or knowledge shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the Certificate
Register and to each Rating Agency. All costs and expenses (including attorneys'
fees) incurred in connection with transferring the Mortgage Files to the
successor Servicer and amending this Agreement to reflect such succession as
Servicer pursuant to this Section 8.01 shall be paid by the predecessor
Servicer. Notwithstanding the termination of the Servicer pursuant hereto, the
Servicer shall remain liable for any causes of action arising out of any Event
of Default occurring prior to such termination.
Section 8.02. Remedies of Trustee. During the continuance of any
Event of Default, so long as such Event of Default shall not have been remedied,
the Trustee, in addition to the rights specified in Section 8.01, shall have the
right, in its own name as trustee of an express trust, to take all actions now
or hereafter existing at law, in equity or by statute to enforce its rights and
remedies and to protect the interests, and enforce the rights and remedies, of
the Certificateholders (including the institution and prosecution of all
judicial, administrative and other proceedings and the filing of proofs of claim
and debt in connection therewith). Except as otherwise expressly provided in
this Agreement, no remedy provided for by this Agreement shall be exclusive of
any other remedy, and each and every remedy shall be cumulative and in addition
to any other remedy and no delay or omission to exercise any right or remedy
shall impair any such right or remedy or shall be deemed to be a waiver of any
Event of Default.
Section 8.03. Directions by Certificateholders and Duties of Trustee
During Event of Default. During the continuance of any Event of Default, Holders
of Certificates evidencing Voting Rights aggregating not less than 25% of each
Class of Certificates affected thereby may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee under this Agreement; provided,
however, that the Trustee shall be under no obligation to pursue any such
remedy, or to exercise any of the trusts or powers vested in it by this
Agreement (including, without limitation, (a) the conducting or defending of any
administrative action or litigation hereunder or in relation hereto, and (b) the
terminating of the Servicer or any successor Servicer from its rights and duties
as servicer hereunder) at the request, order or direction of any of the
Certificateholders, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity satisfactory to it against the costs,
expenses and liabilities which may be incurred therein or thereby and, provided
further, that, subject to the provisions of Section 9.01, the Trustee shall have
the right to decline to follow any such direction if the Trustee, based upon an
Opinion of Counsel, determines that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith determines that the action or
proceeding so directed would subject the Trustee to a risk of personal liability
or be unjustly prejudicial to the non-assenting Certificateholders.
Section 8.04. Action upon Certain Failures of the Servicer and upon
Event of Default. In the event that a Responsible Officer of the Trustee shall
have actual knowledge of any failure of the Servicer specified in Section
8.01(a) or (b) which would become an Event of Default upon the Servicer's
failure to remedy the same after notice, the Trustee shall give notice thereof
to the Servicer. If a Responsible Officer of the Trustee shall have knowledge of
an Event of Default, the Trustee shall give prompt written notice thereof to the
Certificateholders.
Section 8.05. Securities Administrator to Act; Appointment of
Successor.
(a) Within 90 days of the time the Servicer receives a notice of
termination pursuant to Section 8.01, the Securities Administrator (or other
named successor) shall be the successor in all respects to the Servicer in its
capacity as servicer under this Agreement and the transactions set forth or
provided for herein and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Servicer by the terms and provisions
hereof or shall appoint a successor pursuant to Section 3.07. Notwithstanding
the foregoing, (i) the parties hereto agree that the Securities Administrator,
in its capacity as successor Servicer, immediately will assume all of the
obligations of the Servicer to make Advances, (ii) the Securities Administrator,
in its capacity as successor Servicer, shall not be responsible for the lack of
information and/or documents that it cannot obtain through reasonable efforts
and (iii) under no circumstances shall any provision of this Agreement be
construed to require the Securities Administrator, acting in its capacity as
successor to the Servicer in its obligation to make Advances, to advance, expend
or risk its own funds or otherwise incur any financial liability in the
performance of its duties hereunder if it shall have reasonable grounds for
believing that such funds are non-recoverable. Subject to Section 8.05(b), as
compensation therefor, the Securities Administrator shall be entitled to such
compensation as the terminated Servicer would have been entitled to hereunder if
no such notice of termination had been given. Notwithstanding the above, the
Securities Administrator may, if it shall be unwilling so to act, or shall, if
it is legally unable so to act, appoint, or petition a court of competent
jurisdiction to appoint, any established housing and home finance institution
having a net worth of not less than $10,000,000 as the successor to the
terminated Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer hereunder; provided,
however, that any such institution appointed as successor Servicer shall not, as
evidenced in writing by each Rating Agency, adversely affect the then current
rating of any Class of Certificates immediately prior to the termination of the
terminated Servicer. The appointment of a successor Servicer shall not affect
any liability of the predecessor Servicer which may have arisen under this
Agreement prior to its termination as Servicer, nor shall any successor Servicer
be liable for any acts or omissions of the predecessor Servicer or for any
breach by the Servicer of any of its representations or warranties contained
herein or in any related document or agreement. Pending appointment of a
successor to the terminated Servicer hereunder, unless the Securities
Administrator is prohibited by law from so acting, the Securities Administrator
shall act in such capacity as provided above. The Securities Administrator and
such successor shall take such action, consistent with this Agreement, as shall
be necessary to effectuate any such succession. All Servicing Transfer Costs
shall be paid by the predecessor Servicer upon presentation of reasonable
documentation of such costs, and if such predecessor Servicer defaults in its
obligation to pay such costs, such costs shall be paid by the successor Servicer
or the Securities Administrator (in which case the successor Servicer or the
Securities Administrator shall be entitled to reimbursement therefor from the
assets of the Trust).
(b) In connection with the appointment of a successor Servicer or
the assumption of the duties of the Servicer, as specified in Section 8.05(a),
the Securities Administrator may make such arrangements for the compensation of
such successor as it and such successor agree.
(c) Any successor, including the Securities Administrator, to the
Servicer as servicer shall during the term of its service as servicer maintain
in force (i) a policy or policies of insurance covering errors and omissions in
the performance of its obligations as servicer hereunder and (ii) a fidelity
bond in respect of its officers, employees and agents to the same extent as the
Servicer is so required pursuant to Section 3.03.
Section 8.06. Notification to Certificateholders. Upon any
termination or appointment of a successor to the Servicer pursuant to this
Article VIII, the 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) 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 Servicer or the Depositor hereunder.
(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 Servicer and which on their face, do not contradict the
requirements of this Agreement;
(ii) The Trustee (in its individual capacity) shall not be
personally liable for an error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Trustee, unless it
shall be proved that the Trustee was grossly negligent in ascertaining the
pertinent facts;
(iii) The Trustee (in its individual capacity) and the Securities
Administrator (in its individual capacity) shall not be personally liable
with respect to any action taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of Certificateholders as
provided in Section 8.03;
(iv) The Trustee shall not be charged with knowledge of any default
specified in clauses (a) and (b) of Section 8.01 or an Event of Default
under clauses (c), (d) and (e) of Section 8.01 unless a Responsible
Officer of the Trustee assigned to and working in the Corporate Trust
Office of the Trustee obtains actual knowledge of such failure or event or
any Responsible Officer of the Trustee receives written notice of such
failure or event at its Corporate Trust Office from the Servicer, the
Securities Administrator, the Depositor or any Certificateholder. The
Securities Administrator shall not be charged with knowledge of any
default specified in clauses (a) and (b) of Section 8.01 or an Event of
Default under clauses (c), (d) and (e) of Section 8.01 unless a
Responsible Officer of the Securities Administrator assigned to and
working in the Corporate Trust Office 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
failure or event at its Corporate Trust Office from the Servicer, the
Trustee, the Depositor or any Certificateholder; and
(v) Except to the extent provided in Section 8.05 in respect of the
Securities Administrator, no provision in this Agreement shall require the
Trustee or the Securities Administrator to expend or risk its own funds
(including, without limitation, the making of any Advance as successor
Servicer) or otherwise incur any personal financial liability in the
performance of any of its duties as Trustee 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 Trustee to perform, or be responsible for the
manner of performance of, any of the obligations of the Servicer under
this Agreement.
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; nothing contained herein shall,
however, relieve 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 or Certificate or any Class
evidencing, as to such Class, Percentage Interests, aggregating not less
than 50%; provided, however, that if the payment within a reasonable time
to the Trustee 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 applicable, 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 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 be
accountable for the use or application by the Depositor of funds paid to the
Depositor in consideration of the assignment of the Mortgage Loans hereunder by
the Depositor, or for the use or application of any funds paid to Subservicers
or the Servicer in respect of the Mortgage Loans or deposited into the Servicer
Custodial Account, or any other account hereunder (other than the Certificate
Account) by the Servicer.
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 Securities Administrator shall
assume the duties of the Servicer pursuant to Section 8.05 and thereupon only
for the acts or omissions of the successor Servicer); the validity of the
assignment of any Mortgage Loan to the Trustee or of any intervening assignment;
the completeness of any Mortgage Loan; the performance or enforcement of any
Mortgage Loan (other than if the Securities Administrator shall assume the
duties of the Servicer pursuant to Section 8.05 and thereupon only for the acts
or omissions of the Securities Administrator as successor Servicer); the
compliance by the Depositor or the Servicer with any warranty or representation
made under this Agreement or in any related document or the accuracy of any such
warranty or representation; any investment of monies by or at the direction of
the Servicer or any loss resulting therefrom, it being understood that the
Trustee 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 Servicer (other than if the Securities Administrator
shall assume the duties of the Servicer pursuant to Section 8.05 and thereupon
only for the acts or omissions of the Securities Administrator as successor
Servicer), any Subservicer or any Mortgagor; any action of the Servicer (other
than if the Securities Administrator shall assume the duties of the Servicer
pursuant to Section 8.05 and thereupon only for the acts or omissions of the
Securities Administrator as successor Servicer) or any Subservicer taken in the
name of the Securities Administrator; the failure of the Servicer or any
Subservicer 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 Servicer (other than if
the Securities Administrator shall assume the duties of the Servicer pursuant to
Section 8.05 and thereupon only for the acts or omissions of the Securities
Administrator as successor 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 execute and file any financing or continuation statement in any public
office at any time required to maintain the perfection of any security interest
or lien granted to it hereunder.
Section 9.04. Trustee 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 Servicer, any
Subservicer or any of their respective 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 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 "A" by
S&P and at least "A2" by Moody's 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 or the Servicer. If such corporation or banking
association publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section 9.05, the combined capital and surplus of such
corporation or banking association shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
The principal office of the Trustee 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.
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 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.
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 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, then the Servicer may remove the
Trustee or the Securities Administrator, as the case may be, and appoint a
successor trustee 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 Servicer and the Trustee
or the Securities Administrator, as applicable; the 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.
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 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 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 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 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 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.
Section 9.09. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any of the provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any Mortgaged
Property may at the time be located or for any other reason, the Servicer and
the Trustee acting jointly shall have the power and shall execute and deliver
all instruments to appoint one or more Persons approved by the Trustee as
co-trustee or separate trustee of all or any part of the Trust Estate, and to
vest in such Person or Persons, in such capacity, such title to the Trust
Estate, or any part thereof, and, subject to the other provision of this Section
9.09, such powers, duties, obligations, rights and trusts as the Servicer and
the Trustee may consider necessary or desirable. If the Servicer shall not have
joined in such appointment within ten days after the receipt by it of a request
to do so, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor Trustee under Section 9.05 and no notice to Holders
of Certificates of the appointment of co-trustee(s) or separate trustee(s) shall
be required under Section 9.07. 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 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") which
shall be authorized to act on behalf of the Securities Administrator in
authenticating or countersigning Certificates. Initially, the Authenticating
Agent shall be Xxxxx Fargo Bank Minnesota, National Association. 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
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 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 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 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 Securities Administrator, as compensation for
its activities hereunder, shall be entitled to receive earnings on any
investment income with respect to funds in the Certificate Account. 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 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 or
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 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 Servicer and (c)
arising out of the transfer of any ERISA-Restricted Certificate or Residual
Certificate not in compliance with ERISA. Without limiting the foregoing, except
as otherwise agreed upon in writing by the Depositor and the Trustee 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);
provided, however, that the Depositor, the Securities Administrator and the
Trustee intend to enter into a separate agreement for custody-related services.
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
Servicer, appoint one or more Custodians to hold all or a portion of the
Mortgage Files as agent for the Trustee, by entering into a custodial agreement
in a form acceptable to the Depositor and the Servicer. Subject to this Article
IX, the Trustee agrees to comply with the terms of each Custodial Agreement and
to enforce the terms and provisions thereof against the Custodian for the
benefit of the Certificateholders. Each Custodian shall be a depository
institution subject to supervision by federal or state authority, shall have a
combined capital and surplus of at least $10,000,000 and shall be qualified to
do business in the jurisdiction in which it holds any Mortgage File.
Section 9.13. Paying Agents. The 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 3.08 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, the Paying
Agent shall be Xxxxx Fargo Bank Minnesota, National Association. Whenever
reference is made in this Agreement to a distribution by the Securities
Administrator or the furnishing of a statement to Certificateholders 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 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 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 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 Servicer,
at any time terminate the agency of any Paying Agent by giving written notice of
termination to such Paying Agent and to the Servicer. Upon receiving a notice of
resignation or upon such a termination, or in case at any time any Paying Agent
shall cease to be eligible in accordance with the provisions of the first
paragraph of this Section 9.13, the Securities Administrator may appoint, upon
prior written approval of the Servicer, a successor Paying Agent, shall give
written notice of such appointment to the Servicer and shall mail notice of such
appointment to all Certificateholders. Any successor Paying Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Paying Agent. The 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.
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 Servicer or the Depositor hereunder shall occur and be
continuing, the Trustee, in its discretion, may proceed to protect and enforce
its rights and the rights of the Holders of Certificates under this Agreement by
a suit, action or proceeding in equity or at law or otherwise, whether for the
specific performance of any covenant or agreement contained in this Agreement or
in aid of the execution of any power granted in this Agreement or for the
enforcement of any other legal, equitable or other remedy, as the Trustee, being
advised by counsel, shall deem most effectual to protect and enforce any of the
rights of the Trustee and the Certificateholders.
Section 9.17. Waiver of Bond Requirement. The Trustee shall be
relieved of, and each Certificateholder hereby waives, any requirement of any
jurisdiction in which the Trust, or any part thereof, may be located that the
Trustee post a bond or other surety with any court, agency or body whatsoever.
Section 9.18. Waiver of Inventory, Accounting and Appraisal
Requirement. The Trustee shall be relieved of, and each Certificateholder hereby
waives, any requirement of any jurisdiction in which the Trust, or any part
thereof, may be located that the Trustee file any inventory, accounting or
appraisal of the Trust with any court, agency or body at any time or in any
manner whatsoever.
ARTICLE X
TERMINATION
Section 10.01. Termination upon Purchase by the Servicer or
Liquidation of All Mortgage Loans. Subject to Section 10.02, the respective
obligations and responsibilities of the Depositor, the 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 5.04(b)
and 5.05(b)) shall terminate upon the 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 Servicer of all Mortgage
Loans and all REO Property remaining in the Trust Estate at a price equal to the
sum of (i) 100% of the Stated Principal Balance of each Mortgage Loan (other
than any Mortgage Loan as to which REO Property has been acquired and whose fair
market value is included pursuant to clause (ii) below) and (ii) the fair market
value of such REO Property (as determined by the Servicer as of the close of
business on the third Business Day next preceding the date upon which notice of
any such termination is furnished to Certificateholders pursuant to the fourth
paragraph of this Article X), plus any Class Unpaid Interest Shortfall for any
Class of Certificates as well as one month's interest at the related Mortgage
Rate on the Stated Principal Balance of each Mortgage Loan (including any
Mortgage Loan as to which REO Property has been acquired) 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.
The Servicer may not exercise its purchase option until all
Reimbursement Amounts owed to the Trust have been paid. The Securities
Administrator shall notify the Seller upon notice of the Servicer's intent to
exercise its purchase option of any 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 the Servicer to repurchase all of the Mortgage Loans is
conditioned upon the Pool Stated Principal Balance as of the Final Distribution
Date being less than 1% of the Cut-off Date Pool Principal Balance. If such
right is exercised, the Securities Administrator shall, promptly following
payment of the purchase price, release to the Depositor or its designee the
Mortgage Files pertaining to the Mortgage Loans being purchased.
Notice of any termination, specifying the Final Distribution Date
(which shall be a date that would otherwise be a Distribution Date) upon which
the Certificateholders may surrender their Certificates to the Securities
Administrator for payment of the final distribution and for cancellation, shall
be given promptly by the Servicer (if exercising its right to purchase the
assets of the Trust) or by the Securities Administrator (in any other case) by
letter to 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 upon which final payment
of the Certificates will be made upon presentation and surrender of 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 Certificates at the office or agency of
the Securities Administrator therein specified. If the Servicer is obligated to
give notice to Certificateholders as aforesaid, it shall give such notice to the
Trustee, the Securities Administrator and the Certificate Registrar at the time
such notice is given to Certificateholders. In the event such notice is given by
the Servicer, the Servicer shall deposit in the Certificate Account on or before
the Final Distribution Date in immediately available funds an amount equal to
the amount necessary to make the amount, if any, on deposit in the Certificate
Account on the Final Distribution Date equal to the purchase price for the
related assets of the Trust computed as above provided together with a statement
as to the amount to be distributed on each Class of Certificates pursuant to the
next succeeding paragraph.
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 (a) accrued interest
thereon in the case of an interest bearing Certificate and (b) the Class A-PO
Deferred Amount with respect to the Class A-PO Certificates, and (II) as to the
Class A-R Certificate, the amounts, if any, which remain on deposit in the
Certificate Account (other than the amounts retained to meet claims) after
application pursuant to clause (I) above.
If all of the Certificateholders do not surrender their Certificates
for final payment and cancellation on or before the Final Distribution Date, the
Securities Administrator shall on such date cause all funds in the Certificate
Account not distributed in final distribution to Certificateholders to continue
to be held by the Securities Administrator in an Eligible Account for the
benefit of such Certificateholders and the Servicer (if it exercised its right
to purchase the assets of the Trust Estate) or the Securities Administrator (in
any other case) shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within one year after the second
notice all the 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 Certificateholders
concerning surrender of their Certificates, and the cost thereof shall be paid
out of the funds on deposit in such Eligible Account.
Section 10.02. Additional Termination Requirements.
(a) If the Servicer exercises its purchase option as provided in
Section 10.01, the Trust 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 (i) result in the
imposition of taxes on "prohibited transactions" of the Trust as defined in
Section 860F of the Code, or (ii) cause the Trust Estate to fail to qualify as a
REMIC at any time that any Certificates are outstanding:
(i) within 90 days prior to the Final Distribution Date set forth in
the notice given by the Depositor under Section 10.01, the Securities
Administrator shall sell all of the assets of the Trust Estate to the
Servicer for cash; and
(ii) the notice given by the Servicer or the Securities
Administrator pursuant to Section 10.01 shall provide that such notice
constitutes the adopting of a plan of complete liquidation of the REMIC as
of the date of such notice (or, if earlier, the date on which such notice
was mailed to Certificateholders). The Securities Administrator shall also
ensure that such date is specified in the final tax returns of the REMIC.
(b) By their acceptance of the Residual Certificate, the Holder
thereof hereby agrees to take such other action in connection with such plan of
complete liquidation as may be reasonably requested by the Depositor, the
Trustee or the Securities Administrator.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Amendment. This Agreement may be amended from time to
time by the Depositor, the 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 the REMIC as a REMIC at all times
that any Certificates are outstanding or to avoid or minimize the risk of the
imposition of any tax on the REMIC pursuant to the Code that would be a claim
against the Trust Estate, provided that (a) the Trustee 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 Senior Certificates, the Class
B-1 Certificates, the Class B-2 Certificates, the Class B-3 Certificates, the
Class B-4 Certificates or the Class B-5 Certificates as evidenced by a letter
from each Rating Agency rating such Certificates to such effect and (v) to make
any other provisions with respect to matters or questions arising under this
Agreement which shall not be materially inconsistent with the provisions of this
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder, provided that the amendment shall not be deemed to adversely
affect in any material respect the interests of the Certificateholders and no
Opinion of Counsel to that effect shall be required if the Person requesting the
amendment obtains a letter from each Rating Agency stating that the amendment
would not result in the downgrading or withdrawal of the respective ratings then
assigned to the Certificates.
This Agreement may also be amended from time to time by the
Depositor, the Servicer, the Securities Administrator and the Trustee, with the
consent of 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 whether such amendment would adversely affect the qualification of the
Trust Estate as a REMIC and notice of the conclusion expressed in such Opinion
of Counsel shall be included with any such solicitation. An amendment made with
the consent of all Certificateholders and executed in accordance with this
Section 11.01 shall be permitted or authorized by this Agreement notwithstanding
that such Opinion of Counsel may conclude that such amendment would adversely
affect the qualification of the Trust Estate as a REMIC.
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.
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 Servicer and at its expense on direction by the Securities
Administrator, who will act at the direction of Holders of Certificates
evidencing not less than 50% of all Voting Rights, but only upon direction of
the Securities Administrator accompanied by an Opinion of Counsel to the effect
that such recordation materially and beneficially affects the interests of
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 11.03. Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust, or the obligations of the parties hereto, nor shall anything
herein set forth, or contained in the terms of the Certificates, be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the 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 CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT APPLICATION OF THE
CONFLICTS OF LAWS PROVISIONS THEREOF, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
With respect to any claim arising out of this Agreement, each party
irrevocably submits to the exclusive jurisdiction of the courts of the State of
New York and the United States District Court located in the Borough of
Manhattan in The City of New York, and each party irrevocably waives any
objection which it may have at any time to the laying of venue of any suit,
action or proceeding arising out of or relating hereto brought in any such
courts, irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in any inconvenient forum and further
irrevocably waives the right to object, with respect to such claim, suit, action
or proceeding brought in any such court, that such court does not have
jurisdiction over such party, provided that service of process has been made by
any lawful means.
Section 11.05. Notices. All demands, notices, instructions,
directions, requests and communications required or permitted to be delivered
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by certified mail, return receipt requested,
(provided, however, that notices to the 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: General Counsel and Chief
Financial Officer, (b) in the case of the Servicer, Xxxxx Fargo Home Mortgage,
Inc., 0 Xxxx Xxxxxx, Xxx Xxxxxx, XX 00000-0000, Attention: Xxxx Xxxxx, (c) in
the case of the Securities Administrator, Xxxxx Fargo Bank Minnesota, National
Association, X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, Attention: BAFC, Series
2003-1, and for overnight delivery purposes, Xxxxx Fargo Bank Minnesota,
National Association, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000,
Attention: BAFC, Series 2003-1, with a copy to Xxxxx Fargo Bank Minnesota,
National Association, Sixth and Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, 00000,
Attention: BAFC, Series 2003-1, (d) in the case of the Trustee, Wachovia Bank,
National Association, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Structured Finance Services, BAFC 2003-1, (e) in the case of S&P,
Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Mortgage Surveillance Group, and (f) in
the case of Moody's, Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attn: Residential Mortgage Monitoring Group; or, as to
each party, at such other address as shall be designated by such party in a
written notice to each other party. Any notice required or permitted to be
mailed to a Certificateholder shall be given by first class mail, postage
prepaid, at the address of such Holder as shown in the Certificate Register. Any
notice to a Certificateholder so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or not
the Certificateholder receives such notice.
Section 11.06. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 11.07. Certificates Nonassessable and Fully Paid. It is the
intention of the 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, countersignature 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 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 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 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.
IN WITNESS WHEREOF, the Depositor, the 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:
XXXXX FARGO HOME MORTGAGE, INC.,
as Servicer
By:
--------------------------------
Name:
Title:
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Securities Administrator
By:
--------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------
Name:
Title:
STATE OF MARYLAND )
) ss.:
COUNTY OF COLUMBIA )
)
On the 30th day of April, 2003, before me, a notary public in and
for the State of Maryland, personally appeared _________________, known to me
who, being by me duly sworn, did depose and say that s/he is a _______________
of Xxxxx Fargo Bank Minnesota, National Association, a national banking
association, one of the parties that executed the foregoing instrument; and that
s/he signed his name thereto by order of the Board of Directors of such
association.
------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
)
On the 30th day of April, 2003, 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 s/he is a _____________ of
Banc of America Funding Corporation, a Delaware corporation, one of the parties
that executed the foregoing instrument; and that she signed her name thereto by
order of the Board of Directors of such corporation.
association.
------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
)
On the 30th day of April, 2003, 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 s/he is a _____________ of
Wachovia Bank, National Association, a national banking association, one of the
parties that executed the foregoing instrument; and that she signed her name
thereto by order of the Board of Directors of such association.
association.
------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF )
) ss.:
COUNTY OF )
)
On the 30th day of April, 2003, 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 she is a
__________________ of Xxxxx Fargo Home Mortgage, Inc., a California 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.
association.
------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________.
EXHIBIT A-A-1
[FORM OF FACE OF CLASS A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-1
Class A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-1
Class A-1
evidencing an interest in a Trust consisting primarily of loans (the "Mortgage
Loans") secured by first liens on one- to four-family residential properties
deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: April 1, 2003
First Distribution Date: May 20, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $993,910,000.00
Pass-Through Rate: 6.00%
CUSIP No.: 05946X BV 4
ISIN No.: US05946XBV47
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated April 30, 2003 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Home Mortgage, Inc., as
servicer (the "Servicer"), Xxxxx Fargo Bank Minnesota, National Association, as
securities administrator (the "Securities Administrator"), and Wachovia Bank,
National Association, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and is subject
to the terms, provisions and conditions of the Pooling and Servicing Agreement,
to which Pooling and Servicing Agreement the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicer, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-A-WIO
[FORM OF FACE OF CLASS A-WIO CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-1
Class A-WIO
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THE AMOUNT
SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-1
Class A-WIO
evidencing an interest in a Trust consisting primarily of loans (the "Mortgage
Loans") secured by first liens on one- to four-family residential properties
deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: April 1, 2003
First Distribution Date: May 20, 2003
Initial Notional
Amount of this
Certificate
("Denomination"): $
Initial Notional
Amount of this Class: $1,013,444,166.00
Pass-Through Rate: Variable
CUSIP No.: 05946X BX 0
ISIN No.: US05946XBX03
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Notional Amount of the Class to which this
Certificate belongs) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Banc of America Funding
Corporation (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement, dated April 30, 2003 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Home Mortgage, Inc., as servicer
(the "Servicer"), Xxxxx Fargo Bank Minnesota, National Association, as
securities administrator (the "Securities Administrator"), and Wachovia Bank,
National Association, 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 A-WIO Certificate is not entitled to any distributions with
respect to principal on the Mortgage Loans in the Trust.
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Servicer, the Securities
Administrator or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This Class A-WIO Certificate represents the right to receive interest at
the Pass-Through Rate for such Class on the Class A-WIO Notional Amount. The
Pass-Through Rate applicable with respect to any Distribution Date is the per
annum rate equal to (i) the weighted average of the Net Mortgage Interest Rates
of the Premium Mortgage Loans (based on the Stated Principal Balances of the
Premium Mortgage Loans on the Due Date in the month preceding the month of such
Distribution Date) minus (ii) 6.00%.
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.
* * *
EXHIBIT A-PO
[FORM OF FACE OF CLASS A-PO CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-1
Class A-PO
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, EACH COMPONENT OF THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-1
Class A-PO
evidencing an interest in a Trust consisting primarily of loans (the "Mortgage
Loans") secured by first liens on one- to four-family residential properties
deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: April 1, 2003
First Distribution Date: May 20, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $345,868.00
CUSIP No.: 05946X BY 8
ISIN No.: US05946XBY85
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated April 30, 2003 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Home Mortgage, Inc., as
servicer (the "Servicer"), Xxxxx Fargo Bank Minnesota, National Association, as
securities administrator (the "Securities Administrator"), and Wachovia Bank,
National Association, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and is subject
to the terms, provisions and conditions of the Pooling and Servicing Agreement,
to which Pooling and Servicing Agreement the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicer, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This Class A-PO Certificate represents the right to receive principal
only.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-A-R
[FORM OF FACE OF CLASS A-R CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-1
Class A-R
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CLASS A-R CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW WHICH IS SIMILAR
TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), OR A PERSON ACTING ON BEHALF OF
OR INVESTING ASSETS OF A PLAN.
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN TAX RELATED TRANSFER
RESTRICTIONS DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT. ANY
ATTEMPTED OR PURPORTED TRANSFER OF THIS RESIDUAL CERTIFICATE IN VIOLATION OF
SUCH RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN
THE PURPORTED TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-1
Class A-R
evidencing a 100% Percentage Interest in the distributions allocable to the
Certificate of the above-referenced Class with respect to a Trust consisting
primarily of loans (the "Mortgage Loans") secured by first liens on one- to
four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: April 1, 2003
First Distribution Date: May 20, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $100.00
Initial Class Certificate
Balance of this Class: $100.00
Pass-Through Rate: 6.00%
CUSIP No.: 05946X BW 2
ISIN No.: US05946XBW20
THIS CERTIFIES THAT _________ is the registered owner of 100% Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated April 30, 2003 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Home Mortgage, Inc., as
servicer (the "Servicer"), Xxxxx Fargo Bank Minnesota, National Association, as
securities administrator (the "Securities Administrator"), and Wachovia Bank,
National Association, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and is subject
to the terms, provisions and conditions of the Pooling and Servicing Agreement,
to which Pooling and Servicing Agreement the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicer, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
Any distribution of the proceeds of any remaining assets of the
Certificate Account will be made only upon presentment and surrender of this
Class A-R Certificate at the Corporate Trust Office of the Securities
Administrator.
Each Person who has or who acquires this Class A-R Certificate shall be
deemed by the acceptance or acquisition thereof to have agreed to be bound by
the following provisions and the rights of each Person acquiring this Class A-R
Certificate are expressly subject to the following provisions: (i) each Person
holding or acquiring this Class A-R Certificate shall be a Permitted Transferee
and shall promptly notify the 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 A-R Certificate unless such
ownership interest is a pro rata undivided interest; (iii) in connection with
any proposed transfer of this Class A-R Certificate, the 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; (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 Residual
Certificate to such proposed transferee shall be effected; (v) this Residual
Certificate may not be purchased by or transferred to any Person that is not a
U.S. Person, unless (A) such Person holds this Residual Certificate in
connection with the conduct of a trade or business within the United States and
furnishes the transferor and the 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 Residual
Certificate will not be disregarded for federal income tax purposes; (vi) any
attempted or purported transfer of this Class A-R Certificate in violation of
the provisions of such restrictions shall be absolutely null and void and shall
vest no rights in the purported transferee; and (vii) if any Person other than a
Permitted Transferee acquires the Class A-R Certificate in violation of such
restrictions, then the Securities Administrator, based on information provided
to the Securities Administrator by the Servicer, will provide to the Internal
Revenue Service, and to the Persons specified in Section 860E(e)(3) and (6) of
the Code, information needed to compute the tax imposed under Section 860E(e) of
the Code on transfers of residual interests to disqualified organizations.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-B-1
[FORM OF FACE OF CLASS B-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-1
Class B-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A CERTIFICATES
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-1
Class B-1
evidencing an interest in a Trust consisting primarily of loans (the "Mortgage
Loans") secured by first liens on one- to four-family residential properties
deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: April 1, 2003
First Distribution Date: May 20, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $13,264,000.00
Pass-Through Rate: 6.00%
CUSIP No.: 05946X BZ 5
ISIN No.: US05946XBZ50
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated April 30, 2003 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Home Mortgage, Inc., as
servicer (the "Servicer"), Xxxxx Fargo Bank Minnesota, National Association, as
securities administrator (the "Securities Administrator"), and Wachovia Bank,
National Association, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and is subject
to the terms, provisions and conditions of the Pooling and Servicing Agreement,
to which Pooling and Servicing Agreement the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicer, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-B-2
[FORM OF FACE OF CLASS B-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-1
Class B-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A CERTIFICATES
AND CLASS B-1 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-1
Class B-2
evidencing an interest in a Trust consisting primarily of loans (the "Mortgage
Loans") secured by first liens on one- to four-family residential properties
deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: April 1, 2003
First Distribution Date: May 20, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $4,591,000.00
Pass-Through Rate: 6.00%
CUSIP No.: 05946X CA 9
ISIN No.: US05946XCA90
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated April 30, 2003 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Home Mortgage, Inc., as
servicer (the "Servicer"), Xxxxx Fargo Bank Minnesota, National Association, as
securities administrator (the "Securities Administrator"), and Wachovia Bank,
National Association, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and is subject
to the terms, provisions and conditions of the Pooling and Servicing Agreement,
to which Pooling and Servicing Agreement the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicer, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-B-3
[FORM OF FACE OF CLASS B-3 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-1
Class B-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, CLASS B-1 AND CLASS B-2 CERTIFICATES AS DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-1
Class B-3
evidencing an interest in a Trust consisting primarily of loans (the "Mortgage
Loans") secured by first liens on one- to four-family residential properties
deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: April 1, 2003
First Distribution Date: May 20, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $3,571,000.00
Pass-Through Rate: 6.00%
CUSIP No.: 05946X CB 7
ISIN No.: US05946XCB73
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated April 30, 2003 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Home Mortgage, Inc., as
servicer (the "Servicer"), Xxxxx Fargo Bank Minnesota, National Association, as
securities administrator (the "Securities Administrator"), and Wachovia Bank,
National Association, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and is subject
to the terms, provisions and conditions of the Pooling and Servicing Agreement,
to which Pooling and Servicing Agreement the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicer, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-B-4
[FORM OF FACE OF CLASS B-4 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-1
Class B-4
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, CLASS B-1, CLASS B-2 AND CLASS B-3 CERTIFICATES AS DESCRIBED IN
THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE SECURITIES ADMINISTRATOR EITHER (I) A REPRESENTATION LETTER, IN FORM AND
SUBSTANCE SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT
ACTING ON BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO
EFFECT SUCH PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF
FUNDS USED TO PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL
ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION
CLASS EXEMPTION 95-60 ("PTE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE
IS NO PLAN WITH RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES
AND LIABILITIES FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF SUCH PLAN AND ALL
OTHER PLANS MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN
SECTION V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS 10%
OF THE TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH
AMOUNTS ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60) AT THE DATE OF
ACQUISITION AND ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE
PLANS TO WHICH PTE 95-60 APPLIES, OR (II) AN OPINION OF COUNSEL, IN FORM AND
SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR AND THE SERVICER, TO THE
EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE BY OR ON BEHALF OF SUCH
PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS"
AND SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA, THE CODE OR
SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE SERVICER, THE SECURITIES
ADMINISTRATOR OR THE TRUSTEE TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN
IN THE POOLING AND SERVICING AGREEMENT. EACH PERSON WHO ACQUIRES THIS
CERTIFICATE OR ANY INTEREST THEREIN SHALL BE DEEMED TO HAVE MADE THE
REPRESENTATIONS REQUIRED BY THE REPRESENTATION LETTER REFERRED TO IN THE
PRECEDING SENTENCE, UNLESS SUCH PERSON SHALL HAVE PROVIDED SUCH REPRESENTATION
LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE PRECEDING SENTENCE TO THE
TRUSTEE. THE POOLING AND SERVICING AGREEMENT PROVIDES THAT ANY ATTEMPTED OR
PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER RESTRICTIONS WILL BE NULL AND
VOID AND WILL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-1
Class B-4
evidencing an interest in a Trust consisting primarily of loans (the "Mortgage
Loans") secured by first liens on one- to four-family residential properties
deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: April 1, 2003
First Distribution Date: May 20, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,531,000.00
Pass-Through Rate: 6.00%
CUSIP No.: 05946X CC 5
ISIN No.: US05946XCC56
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated April 30, 2003 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Home Mortgage, Inc., as
servicer (the "Servicer"), Xxxxx Fargo Bank Minnesota, National Association, as
securities administrator (the "Securities Administrator"), and Wachovia Bank,
National Association, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and is subject
to the terms, provisions and conditions of the Pooling and Servicing Agreement,
to which Pooling and Servicing Agreement the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicer, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the 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 Seller, 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.
* * *
EXHIBIT B-B-5
[FORM OF FACE OF CLASS B-5 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-1
Class B-5
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, CLASS B-1, CLASS B-2, CLASS B-3 AND CLASS B-4 CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE SECURITIES ADMINISTRATOR EITHER (I) A REPRESENTATION LETTER, IN FORM AND
SUBSTANCE SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT
ACTING ON BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO
EFFECT SUCH PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF
FUNDS USED TO PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL
ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION
CLASS EXEMPTION 95-60 ("PTE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE
IS NO PLAN WITH RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES
AND LIABILITIES FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF SUCH PLAN AND ALL
OTHER PLANS MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN
SECTION V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS 10%
OF THE TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH
AMOUNTS ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60) AT THE DATE OF
ACQUISITION AND ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE
PLANS TO WHICH PTE 95-60 APPLIES, OR (II) AN OPINION OF COUNSEL, IN FORM AND
SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR AND THE SERVICER, TO THE
EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE BY OR ON BEHALF OF SUCH
PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS"
AND SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA, THE CODE OR
SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE SERVICER, THE SECURITIES
ADMINISTRATOR OR THE TRUSTEE TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN
IN THE POOLING AND SERVICING AGREEMENT. EACH PERSON WHO ACQUIRES THIS
CERTIFICATE OR ANY INTEREST THEREIN SHALL BE DEEMED TO HAVE MADE THE
REPRESENTATIONS REQUIRED BY THE REPRESENTATION LETTER REFERRED TO IN THE
PRECEDING SENTENCE, UNLESS SUCH PERSON SHALL HAVE PROVIDED SUCH REPRESENTATION
LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE PRECEDING SENTENCE TO THE
TRUSTEE. THE POOLING AND SERVICING AGREEMENT PROVIDES THAT ANY ATTEMPTED OR
PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER RESTRICTIONS WILL BE NULL AND
VOID AND WILL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-1
Class B-5
evidencing an interest in a Trust consisting primarily of loans (the "Mortgage
Loans") secured by first liens on one- to four-family residential properties
deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: April 1, 2003
First Distribution Date: May 20, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,530,000.00
Pass-Through Rate: 6.00%
CUSIP No.: 05946X CD 3
ISIN No.: US05946XCD30
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated April 30, 2003 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Home Mortgage, Inc., as
servicer (the "Servicer"), Xxxxx Fargo Bank Minnesota, National Association, as
securities administrator (the "Securities Administrator"), and Wachovia Bank,
National Association, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and is subject
to the terms, provisions and conditions of the Pooling and Servicing Agreement,
to which Pooling and Servicing Agreement the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicer, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the 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 Seller, 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.
* * *
EXHIBIT B-B-6
[FORM OF FACE OF CLASS B-6 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-1
Class B-6
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, CLASS B-1, CLASS B-2, CLASS B-3, CLASS B-4 AND CLASS B-5
CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE SECURITIES ADMINISTRATOR EITHER (I) A REPRESENTATION LETTER, IN FORM AND
SUBSTANCE SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT
ACTING ON BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO
EFFECT SUCH PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF
FUNDS USED TO PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL
ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION
CLASS EXEMPTION 95-60 ("PTE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE
IS NO PLAN WITH RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES
AND LIABILITIES FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF SUCH PLAN AND ALL
OTHER PLANS MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN
SECTION V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS 10%
OF THE TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH
AMOUNTS ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60) AT THE DATE OF
ACQUISITION AND ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE
PLANS TO WHICH PTE 95-60 APPLIES, OR (II) AN OPINION OF COUNSEL, IN FORM AND
SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR AND THE SERVICER, TO THE
EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE BY OR ON BEHALF OF SUCH
PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS"
AND SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA, THE CODE OR
SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE SERVICER, THE SECURITIES
ADMINISTRATOR OR THE TRUSTEE TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN
IN THE POOLING AND SERVICING AGREEMENT. EACH PERSON WHO ACQUIRES THIS
CERTIFICATE OR ANY INTEREST THEREIN SHALL BE DEEMED TO HAVE MADE THE
REPRESENTATIONS REQUIRED BY THE REPRESENTATION LETTER REFERRED TO IN THE
PRECEDING SENTENCE, UNLESS SUCH PERSON SHALL HAVE PROVIDED SUCH REPRESENTATION
LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE PRECEDING SENTENCE TO THE
TRUSTEE. THE POOLING AND SERVICING AGREEMENT PROVIDES THAT ANY ATTEMPTED OR
PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER RESTRICTIONS WILL BE NULL AND
VOID AND WILL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-1
Class B-6
evidencing an interest in a Trust consisting primarily of loans (the "Mortgage
Loans") secured by first liens on one- to four-family residential properties
deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: April 1, 2003
First Distribution Date: May 20, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,530,828.00
Pass-Through Rate: 6.00%
CUSIP No.: 05946X CE 1
ISIN No.: US05946XCE13
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated April 30, 2003 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Home Mortgage, Inc., as
servicer (the "Servicer"), Xxxxx Fargo Bank Minnesota, National Association, as
securities administrator (the "Securities Administrator"), and Wachovia Bank,
National Association, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling and Servicing Agreement. This Certificate is issued under and is subject
to the terms, provisions and conditions of the Pooling and Servicing Agreement,
to which Pooling and Servicing Agreement the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicer, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the 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 Seller, 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.
* * *
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 20th day of each calendar month (or, if such
day is not a Business Day, the next Business Day) (each, a "Distribution Date"),
commencing on the first Distribution Date specified on the face hereof, to the
Person in whose name this Certificate is registered at the close of business on
the applicable Record Date in an amount required pursuant to the Pooling and
Servicing Agreement. The Record Date applicable to each Distribution Date is the
last Business Day of the month next preceding the month of such Distribution
Date.
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 Regular 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 Section 5.02 of the Pooling and Servicing
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentation and surrender of such Certificate to the
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 Agreement at any time by the
Depositor, the 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. As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest, as requested by the Holder surrendering the
same.
No service charge will be made for any such registration of transfer or
exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor, the Servicer, the Certificate Registrar, the Securities
Administrator and the Trustee and any agent of the Depositor, the 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 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
is less than 1% of the aggregate Cut-Off Date Principal Balance, the Servicer
will have the option to repurchase, in whole, from the Trust all remaining
Mortgage Loans and all property acquired in respect of such Mortgage Loans at a
purchase price determined as provided in the Pooling and Servicing Agreement. In
the event that no such optional repurchase occurs, the obligations and
responsibilities created by the Pooling and Servicing Agreement will terminate
upon the later of the maturity or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan remaining in the Trust or the disposition of
all property in respect thereof and the distribution to Certificateholders of
all amounts required to be distributed pursuant to the Pooling and Servicing
Agreement. In no event shall the Trust created by the Pooling and Servicing
Agreement continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the Court of St. Xxxxx, living on the date thereof.
Any term used herein that is defined in the Pooling and Servicing
Agreement shall have the meaning assigned in the Pooling and Servicing
Agreement, and nothing herein shall be deemed inconsistent with that meaning.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
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.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Securities Administrator
By
---------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
-------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________for the account of
_________________, account number _____________________, or, if mailed by check,
to Applicable statements should be mailed to __________________________________
This information is provided by , the assignee named above, or , as its
agent.
EXHIBIT D
MORTGAGE LOAN SCHEDULE
[INTENTIONALLY OMITTED]
EXHIBIT E
REQUEST FOR RELEASE OF DOCUMENTS
[date]
To: Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Inventory Control
Re: The Pooling and Servicing Agreement dated April 30, 2003, among Banc
of America Funding Corporation, as Depositor, Xxxxx Fargo Home
Mortgage, Inc., as Servicer, Xxxxx Fargo Bank Minnesota, National
Association, as Securities Administrator, and Wachovia Bank,
National Association, 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 Banc of
America Funding Corporation)
Issuer:
----------------------------
Address:
---------------------------
Date:
------------------------------
Custodian
Wachovia Bank, National Association
Please acknowledge the execution of the above request by your signature and date
below:
--------------------------------- ---------------
Signature Date
Documents returned to Custodian:
--------------------------------- ----------------
Custodian Date
EXHIBIT F
FORM OF CERTIFICATION OF ESTABLISHMENT OF ACCOUNT
[Date]
[_______________] hereby certifies that it has established a [__________]
Account pursuant to Section [________] of the Pooling and Servicing Agreement,
dated April 30, 2003, among Banc of America Funding Corporation, as Depositor,
Xxxxx Fargo Home Mortgage, Inc., as Servicer, Xxxxx Fargo Bank Minnesota,
National Association, as Securities Administrator, and Wachovia Bank, National
Association, as Trustee.
[---------------],
------------------------------------
Print Name of Transferee
By:
--------------------------------
Name:
-------------------------------
Title:
-------------------------------
EXHIBIT G-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank Minnesota, National Association
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services - BAFC 2003-1
Re: Banc of America Funding Corporation, Mortgage
Pass-Through Certificates, Series 2003-1, Class
___, having an initial aggregate Certificate
Balance as of April 30, 2003 of $___________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[______________] (the "Transferor") to [______________] (the "Transferee") of
the captioned Certificates (the "Transferred Certificates"), pursuant to Section
6.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated April 30, 2003, among Banc of America Funding Corporation, as
Depositor, Xxxxx Fargo Home Mortgage, Inc., as Servicer, Xxxxx Fargo Bank
Minnesota, National Association, as Securities Administrator, and Wachovia Bank,
National Association, 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 any state securities laws, or
would require registration or qualification of the Transferred
Certificates pursuant to the 1933 Act or any state securities laws.
Very truly yours,
------------------------------------
(Transferor)
By:
--------------------------------
Name:
-------------------------------
Title:
-------------------------------
EXHIBIT G-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank Minnesota, National Association
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services - BAFC 2003-1
Re: Banc of America Funding Corporation, Mortgage
Pass-Through Certificates, Series 2003-1, Class
___, having an initial aggregate Certificate
Balance as of April 30, 2003 of $_________]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[_______________] (the "Transferor") to [_________________________________] (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 6.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated April 30, 2003, among Banc of America Funding
Corporation, as Depositor, Xxxxx Fargo Home Mortgage, Inc., as Servicer, Xxxxx
Fargo Bank Minnesota, National Association, as Securities Administrator, and
Wachovia Bank, National Association, 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 associated with the
Transferred Certificate, and (f) all related matters, that it has
requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgment below.
Very truly yours,
------------------------------------
(Transferor)
By:
--------------------------------
Name:
-------------------------------
Title:
-------------------------------
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
------------------------------------
(Nominee)
By:
--------------------------------
Name:
-------------------------------
Title:
-------------------------------
ANNEX 1 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [__________________] (the
"Transferor") Xxxxx Fargo Bank Minnesota, National Association, 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.
--------
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.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a state or federal authority having supervision over
any such institutions, or is a foreign savings and loan association
or equivalent institute and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. savings and loan association, and
not more than 18 months preceding such date of sale in the case of a
foreign savings and loan association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a state, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency or
instrumentality of the state or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee, (ii) securities that are part
of an unsold allotment to or subscription by the Transferee, if the Transferee
is a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee did not
include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee may be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the
Yes No Transferred Certificates only for the
Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
------------------------------------
Print Name of Transferee
By:
--------------------------------
Name:
-------------------------------
Title:
-------------------------------
Date:
-------------------------------
ANNEX 2 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [_________________] (the
"Transferor") Xxxxx Fargo Bank Minnesota, National Association, 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).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the
Yes No Transferred Certificates only for the
Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
------------------------------------
Print Name of Transferee
By:
--------------------------------
Name:
-------------------------------
Title:
-------------------------------
IF AN ADVISER:
------------------------------------
Print Name of Transferee
By:
--------------------------------
Date:
-------------------------------
EXHIBIT G-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank Minnesota, National Association
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services - BAFC 2003-1
Re: Banc of America Funding Corporation, Mortgage
Pass-Through Certificates, Series 2003-1, Class
___, having an initial aggregate Certificate
Principal Balance as of April 30, 2003 of
$_________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[_____________________] (the "Transferor") to [________________________________]
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 6.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated April 30, 2003, among Banc of
America Funding Corporation, as Depositor, Xxxxx Fargo Home Mortgage, Inc., as
Servicer, Xxxxx Fargo Bank Minnesota, National Association, as Securities
Administrator, and Wachovia Bank, National Association, 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 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.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON
BEHALF OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN
INDIVIDUAL RETIREMENT ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR ANY FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A
"PLAN"), MAY RESULT IN "PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF
ERISA, THE CODE OR SIMILAR LAW. TRANSFER OF THIS CERTIFICATE WILL NOT BE
MADE UNLESS THE TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER
(I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE SATISFACTORY TO THE
SECURITIES ADMINISTRATOR, STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON
BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT
SUCH PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF
FUNDS USED TO PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL
ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), 60 FED. REG. 35925 (JULY
12, 1995)), THERE IS NO BENEFIT PLAN WITH RESPECT TO WHICH THE AMOUNT OF
SUCH GENERAL ACCOUNT'S RESERVES AND LIABILITIES FOR THE CONTRACT(S) HELD
BY OR ON BEHALF OF SUCH BENEFIT PLAN AND ALL OTHER BENEFIT PLANS
MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN
SECTION V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS
10% OF THE TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT
(AS SUCH AMOUNTS ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60) AT THE
DATE OF ACQUISITION AND ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL
ACCOUNT ARE PLANS TO WHICH PTE 95-60 APPLIES, OR (II) AN OPINION OF
COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY TO THE SECURITIES
ADMINISTRATOR AND THE SERVICER, TO THE EFFECT THAT THE PURCHASE OR HOLDING
OF THIS CERTIFICATE BY OR ON BEHALF OF SUCH PLAN WILL NOT RESULT IN THE
ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA, THE CODE OR SIMILAR LAW AND
WILL NOT SUBJECT THE DEPOSITOR, THE SERVICER OR THE SECURITIES
ADMINISTRATOR TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE
POOLING AND SERVICING AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
OR ANY INTEREST THEREIN SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS
REQUIRED BY THE REPRESENTATION LETTER REFERRED TO IN THE PRECEDING
SENTENCE UNLESS SUCH PERSON SHALL HAVE PROVIDED SUCH REPRESENTATION LETTER
OR THE OPINION OF COUNSEL REFERRED TO IN THE PRECEDING SENTENCE TO THE
SECURITIES ADMINISTRATOR. THE POOLING AND SERVICING AGREEMENT PROVIDES
THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER
RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY
PURPORTED TRANSFEREE.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security with any person in any manner, (d) made any general solicitation by
means of general advertising or in any other manner, or (e) taken any other
action, that (in the case of any of the acts described in clauses (a) through
(e) above) would constitute a distribution of the Transferred Certificates under
the 1933 Act, would render the disposition of the Transferred Certificates a
violation of Section 5 of the 1933 Act or any state securities law or would
require registration or qualification of the Transferred Certificates pursuant
thereto. The Transferee will not act, nor has it authorized nor will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to the Transferred Certificates, any interest in the Transferred
Certificates or any other similar security.
5. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Transferred Certificates and distributions thereon, (c)
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust created pursuant thereto, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501 (a) under the 1933 Act or an entity
in which all the equity owners come within such paragraphs and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Transferred
Certificates; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
------------------------------------
(Transferee)
By:
--------------------------------
Name:
-------------------------------
Title:
-------------------------------
Date:
-------------------------------
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
------------------------------------
(Nominee)
By:
--------------------------------
Name:
-------------------------------
Title:
-------------------------------
EXHIBIT H
FORM OF TRANSFEREE REPRESENTATION LETTER
FOR BENEFIT PLAN-RESTRICTED CERTIFICATES
Xxxxx Fargo Bank Minnesota, National Association.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services - BAFC 2003-1
Re: Banc of America Funding Corporation, Mortgage
Pass-Through Certificates, Series 2003-1, Class
___, having an initial aggregate Certificate
Principal Balance as of April 30, 2003 of
$_________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[_______________________] (the "Transferor") to [______________________________]
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 6.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated April 30, 2003, among Banc of
America Funding Corporation, as Depositor, Xxxxx Fargo Home Mortgage, Inc., as
Servicer, Xxxxx Fargo Bank Minnesota, National Association, as Securities
Administrator, and Wachovia Bank, National Association, 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, and is not acting on behalf of, an employee benefit plan or
arrangement, including an individual retirement account, subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), the Internal
Revenue Code of 1986, as amended (the "Code"), or any federal, state or local
law ("Similar Law") which is similar to ERISA or the Code (collectively, a
"Plan"), and it is not using the assets of any such Plan to effect the purchase
of the Transferred Certificates; or
(b) it is an insurance company and the source of funds used to purchase
the Transferred Certificates is an "insurance company general account" (as
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTE
95-60"), 60 Fed. Reg. 35925 (July 12, 1995)), there is no Plan with respect to
which the amount of such general account's reserves and liabilities for the
contract(s) held by or on behalf of such Plan and all other Plans maintained by
the same employer (or affiliate thereof as defined in Section V(a)(1) of PTE
95-60) or by the same employee organization exceeds 10% of the total of all
reserves and liabilities of such general account (as such amounts are determined
under Section I(a) of PTE 95-60) at the date of acquisition and all Plans that
have an interest in such general account are Plans to which PTE 95-60 applies.
Capitalized terms used in and not otherwise defined herein shall have the
meaning assigned to them in the Pooling and Servicing Agreement.
Very truly yours,
------------------------------------
(Transferee)
By:
--------------------------------
Name:
-------------------------------
Title:
-------------------------------
Date:
-------------------------------
EXHIBIT I
FORM OF AFFIDAVIT REGARDING TRANSFER OF
RESIDUAL CERTIFICATE PURSUANT TO SECTION 6.02
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2003-1
STATE OF )
) ss:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of _______________________________, the
proposed transferee (the "Transferee") of the Class A-R Certificate (the
"Residual Certificate") issued pursuant to the Pooling and Servicing Agreement,
dated April 30, 2003, (the "Agreement"), relating to the above-referenced
Series, by and among Banc of America Funding Corporation, as depositor (the
"Depositor"), Xxxxx Fargo Home Mortgage, Inc., as servicer, Xxxxx Fargo Bank
Minnesota, National Association, as Securities Administrator, and Wachovia Bank,
National Association, as Trustee. Capitalized terms used but not defined herein
shall have the meanings ascribed to such terms in the Agreement. The Transferee
has authorized the undersigned to make this affidavit on behalf of the
Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the date
of the transfer, a Permitted Transferee. The Transferee is acquiring the
Residual Certificate either (i) for its own account or (ii) as nominee, trustee
or agent for another Person who is a Permitted Transferee and has attached
hereto an affidavit from such Person in substantially the same form as this
affidavit. The Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax will
be imposed on Transfers of the Residual Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will be
imposed on a "pass-through entity" holding the Certificate if at any time during
the taxable year of the pass-through entity a Person that is not a Permitted
Transferee is the record Holder of an interest in such entity. The Transferee
understands that, other than in the case of an "electing large partnership"
under Section 775 of the Code, such tax will not be imposed for any period with
respect to which the record Holder furnishes to the pass-through entity an
affidavit that such record Holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 6.02 of the
Agreement and understands the legal consequences of the acquisition of the
Residual Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 6.02 of the Agreement and the restrictions noted on
the face of the Certificate. The Transferee understands and agrees that any
breach of any of the representations included herein shall render the transfer
to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a transfer affidavit in the form of
this Affidavit from any Person to whom the Transferee attempts to transfer the
Residual Certificate, and in connection with any transfer by a Person for whom
the Transferee is acting as nominee, trustee or agent, and the Transferee will
not transfer the Residual Certificate or cause the Residual Certificate to be
transferred to any Person that the Transferee knows is not a Permitted
Transferee.
7. The Transferee historically has paid its debts as they have become due.
8. The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the Residual
Certificate.
9. The taxpayer identification number of the Transferee's nominee is
___________.
10. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
11. The Transferee is aware that the Residual Certificate may be a
"noneconomic residual interest" within the meaning of Treasury Regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
12. The Transferee will not cause income from the Residual Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other
person.
13. If the Transferee is purchasing the Residual Certificate in a transfer
intended to meet the safe harbor provisions of Treasury Regulations Sections
1.860E-1(c), the Transferee has executed and attached Attachment A hereto.
14. The Transferee is not an employee benefit plan or arrangement,
including an individual retirement account, subject to ERISA, the Code or any
federal, state or local law which is similar to ERISA or the Code, and the
Transferee is not acting on behalf of such a plan or arrangement.
* * *
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer this _____ day of ________________, ____.
Print Name of Transferee
By:
--------------------------------
Name:
Title:
Personally appeared before me the above-named ___________________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the _______________________ of the Transferee, and
acknowledged that he executed the same as his free act and deed and the free act
and deed of the Transferee.
Subscribed and sworn before me this _____ day of__________________, _____
------------------------------------
NOTARY PUBLIC
My Commission expires the ___ day of
___________, ______
ATTACHMENT A
to
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4) OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, AND FOR NON-ERISA INVESTORS
Check the appropriate box:
o 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
o The transfer of the Residual Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly:
(i) the Transferee is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income
from Residual Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the Transferee's
two fiscal years preceding the year of the transfer, the Transferee
had gross assets for financial reporting purposes (excluding any
obligation of a person related to the Transferee within the meaning
of U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess
of $100 million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Residual Certificate only to
another "eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that
satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii) and
(iii) and Section 1.860E-1(c)(5) of the U.S. Treasury Regulations;
(iv) the Transferee has determined the consideration paid to it to
acquire the Residual Certificate based on reasonable market
assumptions (including, but not limited to, borrowing and investment
rates, prepayment and loss assumptions, expense and reinvestment
assumptions, tax rates and other factors specific to the Transferee)
that it has determined in good faith; and
(v) in the event of any transfer of the Residual Certificate by the
Transferee, the Transferee will require its transferee to complete a
representation in the form of this Attachment A as a condition of
such transferee's purchase of the Residual Certificate.
EXHIBIT J
CONTENTS OF THE SERVICER MORTGAGE FILE
1. Copies of Mortgage Loans Documents.
2. Residential loan application.
3. Mortgage Loan closing statement.
4. Verification of employment and income, if required.
5. Verification of acceptable evidence of source and amount of downpayment.
6. Credit report on Mortgagor, in a form acceptable to either FNMA or FHLMC.
7. Residential appraisal report.
8. Photograph of the Mortgaged Property.
9. Survey of the Mortgaged Property, unless a survey is not required by the
title insurer.
10. Copy of each instrument necessary to complete identification of any
exception set forth in the exception schedule in the title policy, i.e.,
map or plat, restrictions, easements, home owner association declarations,
etc.
11. Copies of all required disclosure statements.
12. If applicable, termite report, structural engineer's report, water
potability and septic certification.
13. Sales Contract, if applicable.
14. The Primary Insurance Policy or certificate of insurance or an electronic
notation of the existence of such policy, where required pursuant to the
Agreement.
15. Evidence of electronic notation of the hazard insurance policy, and if
required by law, evidence of the flood insurance policy.
EXHIBIT K
FORM OF SPECIAL SERVICING AGREEMENT
This Special Servicing Agreement (the "Agreement") is made and
entered into as of ___________________, between Xxxxx Fargo Home Mortgage,
Inc. (the "Servicer") and ___________________ (the "Loss Mitigation Advisor").
PRELIMINARY STATEMENT
_________________ (the "Purchaser") is the holder of the entire interest
in Banc of America Funding Corporation; Mortgage Pass-Through Certificates,
Series ______, Class ____ (the "Class B Certificates"). The Class B Certificates
were issued pursuant to a Pooling and Servicing Agreement dated
___________________ among Banc of America Funding Corporation, as depositor (the
"Depositor"), the Servicer, Xxxxx Fargo Bank Minnesota, National Association, as
Securities Administrator, and Wachovia Bank, National Association, as Trustee.
The Purchaser has requested the Servicer to engage the Loss
Mitigation Advisor, at the Purchaser's expense, to assist the Servicer with
respect to default management and reporting situations for the benefit of the
Purchaser.
In consideration of the mutual agreements herein contained, the
receipt and sufficiency of which are hereby acknowledged, the Servicer hereby
engages the Loss Mitigation Advisor to provide advice in connection with default
management and reporting situations with respect to defaulted loans, including
providing to the Servicer recommendations with respect to foreclosures, the
acceptance of so-called short payoffs, deeds in lieu of or in aid of foreclosure
and deficiency notes, as well as with respect to the sale of REO properties. The
Loss Mitigation Advisor hereby accepts such engagement, and acknowledges that
its fees will be paid by the Purchaser and not the Servicer, and that it will
not look to the Servicer for financial remuneration. It is the intent of the
parties to this Agreement that the services of the Loss Mitigation Advisor are
provided without fee to the Servicer for the benefit of the Purchaser for the
life of the Class B Certificates.
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Business Day: Any day other than (i) a Saturday or a Sunday or (ii)
a day on which banking institutions in the State of New York are required or
authorized by law or executive order to be closed.
Commencement of Foreclosure: The first official action required
under local law in order to commence foreclosure proceedings or to schedule a
trustee's sale under a deed of trust, including (i) in the case of a mortgage,
any filing or service of process necessary to commence an action to foreclose,
or (ii) in the case of a deed of trust, the posting, publishing, filing or
delivery of a notice of sale.
Delay of Foreclosure: The postponement for more than three Business
Days of the scheduled sale of Mortgaged Property to obtain satisfaction of a
Mortgage Loan.
Loss Mitigation Advisor: ______________.
Purchaser: _______________________, or the holder of record of
the Class B Certificates.
Short Payoff: Liquidation of a Mortgage Loan at less than the full
amount of the outstanding balance of the Mortgage Loan plus advances and costs
through a negotiated settlement with the borrower, which may include a
deed-in-lieu of foreclosure or sale of the property or of the promissory note
secured by the collateral property to a third party, in either case with or
without a contribution toward any resulting deficiency by the borrower.
Section 1.02. Definitions Incorporated by Reference.
All capitalized terms not otherwise defined in this Agreement shall
have the meanings assigned in the Pooling and Servicing Agreements.
ARTICLE II
SPECIAL SERVICING PROCEDURES
Section 2.01. Reports and Notices.
(a) In connection with the performance of its duties under the
Pooling and Servicing Agreement relating to the realization upon defaulted
Mortgage Loans, the Servicer shall use reasonable efforts to provide to the Loss
Mitigation Advisor with the following notices and reports. All such notices and
reports may be sent to the Loss Mitigation Advisor by telecopier, electronic
mail, express mail or regular mail.
(i) The Servicer shall within five Business Days after each
Distribution Date either: (A) provide to the Loss Mitigation Advisor a
written or electronic report, using the same methodology and calculations
as in its standard servicing reports, indicating for the trust fund formed
by the Pooling and Servicing Agreement, the number of Mortgage Loans that
are (1) sixty days delinquent, (2) ninety days or more delinquent, (3) in
foreclosure or (4) real estate owned (REO), and indicating for each such
Mortgage Loan the loan number, whether the loan is in bankruptcy or paying
under the terms of a repayment plan, the reason for default, and
outstanding principal balance; or (B) provide the information detailed in
(A) to a data service provider of the Loss Mitigation Advisor's choice in
an electronic format acceptable to that data service provider. Provision
of the information to a service provider other than that specified by the
Loss Mitigation Advisor is acceptable.
(ii) Prior to a Delay of Foreclosure in connection with any Mortgage
Loan, the Servicer shall provide the Loss Mitigation Advisor with a notice
of such proposed and imminent delay, stating the loan number, the
aggregate amount owing under the Mortgage Loan, and the reason and
justification for delaying foreclosure action. All notices and supporting
documentation pursuant to this subsection may be provided via telecopier,
express mail or electronic mail.
(iii) Prior to accepting any Short Payoff in connection with any
Mortgage Loan, the Servicer shall provide the Loss Mitigation Advisor with
a notice of such proposed and imminent Short Payoff, stating the loan
number, the aggregate amount owing under the Mortgage Loan, and the
justification for accepting the proposed Short Payoff. Such notice may be
sent by telecopier, express mail, electronic mail or regular mail.
(iv) Within five (5) business days of each Distribution Date, the
Servicer shall provide the Loss Mitigation Advisor with a report listing
each loan that has resulted in a realized loss that has been reported to
the trustee. Such report shall specify the loan number, the outstanding
principal balance of the loan upon its liquidation, the realized loss, and
the following components of realized loss: foreclosure costs, advances,
mortgage insurance proceeds, marketing and property rehabilitation costs,
and other costs. Such report may be provided by telecopier, express mail,
regular mail or electronic mail. The Loss Mitigation Advisor shall have at
least ten (10) business days in which to respond with reasonable questions
or requests for additional information regarding the amounts reported as
realized losses, and the Servicer shall within five (5) business days of
receipt of the Loss Mitigation Advisor's questions or additional
information requests provide responses to such questions and requests.
(v) Within five (5) business days of receipt by the Servicer of an
offer to acquire an REO property at an amount that is more than 15% below
the most recent market valuation of that property obtained by the Servicer
(or if no such valuation has been obtained, the appraisal used in
connection with the originating of the related Mortgage Loan), the
Servicer shall notify the Loss Mitigation Advisor of such offer and shall
provide a justification for accepting such offer, if that is the
Servicer's recommendation.
(vi) Within five (5) business days of receipt by the Servicer that a
claim filed for mortgage insurance, or any part thereof, has been rejected
by the mortgage insurance provider, the Servicer shall provide a copy of
the rejected claim with explanations for the item or items rejected to the
Loss Mitigation Advisor.
(vii) Within five (5) business days of providing the trustee with
any notice regarding a mortgage loan substitution, loan modification, or
loan repurchase, the Servicer shall provide the Loss Mitigation Advisor
with a copy of the notice.
(b) If requested by the Loss Mitigation Advisor, the Servicer shall
make its servicing personnel available during its normal business hours to
respond to reasonable inquiries, in writing by facsimile transmission, express
mail or electronic mail, by the Loss Mitigation Advisor in connection with any
Mortgage Loan identified in a report under subsection 2.01 (a)(i), (a)(ii),
(a)(iii) or (a)(iv) which has been given to the Loss Mitigation Advisor;
provided that the Servicer shall only be required to provide information that is
readily accessible to their servicing personnel.
(c) In addition to the foregoing, the Servicer shall provide to the
Loss Mitigation Advisor such information as the Loss Mitigation Advisor may
reasonably request concerning each Mortgage Loan that is at least sixty days
delinquent and each Mortgage Loan which has become real estate owned, provided
that the Servicer shall only be required to provide information that is readily
accessible to its servicing personnel.
(d) With respect to all Mortgage Loans which are serviced at any
time by the Servicer through a subservicer, the Servicer shall be entitled to
rely for all purposes hereunder, including for purposes of fulfilling its
reporting obligations under this Section 2.01, on the accuracy and completeness
of any information provided to it by the applicable subservicer.
Section 2.02. Loss Mitigation Advisor's Recommendations With Respect
to Defaulted Loans.
(a) All parties to this Agreement acknowledge that the Loss
Mitigation Advisor's advice is made in the form of recommendations, and that the
Loss Mitigation Advisor does not have the right to direct the Servicer in
performing its duties under the Pooling and Servicing Agreement. The Servicer
may, after review and analysis of the Loss Mitigation Advisor's recommendation,
accept or reject it, in the Servicer's sole discretion, subject to the standards
of the Servicer to protect the interest of the Certificateholders set forth in
the Pooling and Servicing Agreement.
(b) Within two (2) business days of receipt of a notice of a
foreclosure delay, the Loss Mitigation Advisor shall provide the Servicer with a
recommendation regarding the delay, provided, however, that if additional
information is required on which to base a recommendation, the Loss Mitigation
Advisor shall notify the Servicer of the additional information needed within
the allotted time, and the Servicer shall promptly provide such information and
the Loss Mitigation Advisor shall then submit to the Servicer its
recommendation. The Loss Mitigation Advisor may recommend that additional
procedures be undertaken to further analyze the property, the borrower, or
issues related to the default or foreclosure. Such additional procedures may
include asset searches, property valuations, legal analysis or other procedures
that are warranted by the circumstances of the property, borrower or
foreclosure. The Loss Mitigation Advisor may recommend such other actions as are
warranted by the circumstances of the property, borrower or foreclosure.
(c) Within two (2) business days of receipt of a notice of a
proposed Short Payoff, the Loss Mitigation Advisor shall provide the Servicer
with a recommendation regarding the proposed Short Payoff, provided, however,
that if additional information is required on which to base a recommendation,
the Loss Mitigation Advisor shall notify the Servicer of the additional
information needed within two business days, and the Servicer shall promptly
provide such information and the Loss Mitigation Advisor shall then submit to
the Servicer its recommendation. The Loss Mitigation Advisor's recommendation
may take the form of concurring with the proposed Short Payoff, recommending
against such Short Payoff, with a justification provided, or proposing a
counteroffer.
(d) Within two (2) business days of receipt of a notice of an REO
sale at an amount that is more than 15% below the recent market valuation of
that property, the Loss Mitigation Advisor shall provide the Servicer with its
recommendation. The Loss Mitigation Advisor's recommendation may take the form
of concurring with the proposed below-market sale, recommending against such
below-market sale, or proposing a counteroffer.
Section 2.03. Termination.
(a) With respect to all Mortgage Loans included in a trust fund, the
Servicer's obligations under Section 2.01 and Section 2.02 shall terminate at
such time as the Certificate Principal Balances of the related Class B
Certificates have been reduced to zero.
(b) The Loss Mitigation Advisor's responsibilities under this
Agreement shall terminate upon the termination of the fee agreement between the
Purchaser or its successor and the Loss Mitigation Advisor. The Loss Mitigation
Advisor shall promptly notify the Servicer of the date of termination of such
fee agreement, but in no event later than 5:00 P.M., EST, on the effective date
thereof.
(c) Neither the Servicer nor any of its directors, officers,
employees or agents shall be under any liability for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Servicer or any such Person against any liability which
would otherwise be imposed by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Servicer and the Loss Mitigation Advisor
and any director, officer, employee or agent thereof may rely in good faith on
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. Neither the Loss Mitigation
Advisor, its directors, officers, employees or agents shall be under any
liability for any actions taken by the Servicer based upon the recommendation
pursuant to this Agreement, provided they are made in good faith.
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3.01. Amendment.
This Agreement may be amended from time to time by the Servicer and
the Loss Mitigation Advisor by written agreement signed by the Servicer and the
Loss Mitigation Advisor.
Section 3.02. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
Section 3.03. Governing Law.
This Agreement shall be construed in accordance with the laws of the
State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
Section 3.04. Notices.
All demands, notices and direction hereunder shall be in writing or
by telecopier and shall be deemed effective upon receipt to:
(a) in the case of the Servicer,
Xxxxx Fargo Home Mortgage, Inc.
1 Home Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Attn: Xxxx Xxxxx
or such other address as may hereafter be furnished in writing by the
Servicer,
(b) in the case of the Loss Mitigation Advisor,
-----------------------
(c) in the case of the Purchaser:
-----------------------
Section 3.05. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever, including regulatory, held
invalid, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
Section 3.06. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the respective successors and assigns of the parties hereto,
and all such provisions shall inure to the benefit of the Certificateholders.
(b) The Servicer shall notify the Loss Mitigation Advisor of the
assignment of its duties to any successor servicer within thirty (30) days prior
to such assignment, and shall provide the name, address, telephone number and
telecopier number for the successor to the Loss Mitigation Advisor.
Section 3.07. Article and Section Headings.
The article and section headings herein are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
Section 3.08. Confidentiality.
The Servicer acknowledges the confidentiality of this Agreement and
will not release or republish its contents without the consent of the Loss
Mitigation Advisor except to the extent required by law, regulation or court
order.
The Loss Mitigation Advisor agrees that all information supplied by
or on behalf of the Servicer under this Agreement, is the property of the
Servicer. The Loss Mitigation Advisor shall keep in strictest confidence all
information relating to this Agreement, including, without limitation,
individual account information and other information supplied by or on behalf of
the Servicer pursuant to Section 2.01, and that information which may be
acquired in connection with or as a result of this Agreement. During the term of
this Agreement and at any time thereafter, without the prior written consent of
the Servicer, the Loss Mitigation Advisor shall not publish, communicate,
divulge, disclose or use any of such information. Upon termination or expiration
of this Agreement, the Loss Mitigation Advisor shall deliver all records, data,
information, and other documents and all copies thereof supplied by or on behalf
of the Servicer pursuant to Section 2.01 to the Servicer and such shall remain
the property of the Servicer.
Section 3.09. Independent Contractor.
In all matters relating to this Agreement, the Loss Mitigation
Advisor shall be acting as an independent contractor. Neither the Loss
Mitigation Advisor nor any employees of the Loss Mitigation Advisor are
employees or agents of the Servicer under the meaning or application of any
Federal or State Unemployment or Insurance Laws or Workmen's Compensation Laws,
or otherwise. The Loss Mitigation Advisor shall assume all liabilities or
obligations imposed by any one or more of such laws with respect to the
employees of the Loss Mitigation Advisor in the performance of this Agreement.
The Loss Mitigation Advisor shall not have any authority to assume or create any
obligation, express or implied, on behalf of the Servicer, and the Loss
Mitigation Advisor shall not have the authority to represent itself as an agent,
employee, or in any other capacity of the Servicer.
IN WITNESS WHEREOF, the Servicer and the Loss Mitigation Advisor
have caused their names to be signed hereto by their respective officers
thereunto duly authorized, all as of the day and year first above written.
Xxxxx Fargo Home Mortgage, Inc.
By:
--------------------------------
Name:
-------------------------------
Title:
-------------------------------
Loss Mitigation Advisor
------------------------------------
By:
--------------------------------
Name:
Title:
PURCHASER'S ACKNOWLEDGEMENT AND AGREEMENT
Purchaser executes this agreement for the purpose of acknowledging the limited
obligations of the Servicer in respect of the Loss Mitigation Advisor's
recommendation, as described in Section 2.02(a) hereof and confirming to the
Servicer that (i) it shall be solely responsible for the payment of the fees of
the Loss Mitigation Advisor pursuant to the terms of an agreement between
Purchaser and Loss Mitigation Advisor dated _____________, 20__ and (ii)
Purchaser upon transfer of its interest in any of the Class B Certificates or
any part thereof will require its successor to consent to this Special Servicing
Agreement and to pay any of the fees due to the Loss Mitigation Advisor pursuant
to the agreement referenced in clause (i) above.
Purchaser
By:
--------------------------------
Name:
-------------------------------
Title:
-------------------------------
EXHIBIT L
LIST OF RECORDATION STATES
Florida
Maryland
EXHIBIT M
FORM OF INITIAL CERTIFICATION OF THE TRUSTEE
April 30, 0000
Xxxx xx Xxxxxxx Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxx Fargo Home Mortgage, Inc.
1 Home Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Re: The Pooling and Servicing Agreement, dated April
30, 2003, among Banc of America Funding
Corporation, as Depositor, Xxxxx Fargo Home
Mortgage, Inc., as Servicer, Wachovia Bank,
National Association, as Trustee and Xxxxx Fargo
Bank Minnesota, National Association., as
Securities Administrator (BAFC 2003-1)
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as Trustee, hereby certifies that, except as specified in any list
of exceptions attached hereto, it has received the original Mortgage Note
relating to each of the Mortgage Loans listed on the Mortgage Loan Schedule.
The Trustee has made no independent examination of any documents contained
in each Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement in connection with this Initial Certification. The Trustee
makes no representations as to: (i) the validity, legality, sufficiency,
enforceability, recordability or genuineness of any of the documents contained
in each Mortgage File or any of the Mortgage Loans identified in the Mortgage
Loan Schedule or (ii) the collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
WACHOVIA BANK,
NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------
Name:
-------------------------------
Title:
-------------------------------
EXHIBIT N
FORM OF FINAL CERTIFICATION OF THE TRUSTEE
[---------- --, ----]
Banc of America Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxx Fargo Home Mortgage, Inc.
1 Home Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Re: The Pooling and Servicing Agreement, dated April 30,
2003, among Banc of America Funding Corporation, as
Depositor, Xxxxx Fargo Home Mortgage, Inc., as
Servicer, Xxxxx Fargo Bank Minnesota, National
Association, as Securities Administrator, and
Wachovia Bank, National Association, as Trustee
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as Trustee, hereby certifies that, as to each Mortgage Loan listed
in the Mortgage Loan Schedule, except as may be specified in any list of
exceptions attached hereto, such Mortgage File contains all of the items
required to be delivered pursuant to Section 2.01(b) of the Pooling and
Servicing Agreement.
The Trustee has made no independent examination of any documents contained
in each Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement in connection with this Final Certification. The Trustee
makes no representations as to: (i) the validity, legality, sufficiency,
enforceability, recordability or genuineness of any of the documents contained
in each Mortgage File or any of the Mortgage Loans identified in the Mortgage
Loan Schedule or (ii) the collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
WACHOVIA BANK,
NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------
Name:
------------------------------
Title:
------------------------------
EXHIBIT O
Form of Xxxxxxxx-Xxxxx Certification
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2003-1
I, [________], a [_____________] of Banc of America Funding
Corporation, certify that:
1. I have reviewed the annual report on Form 10-K, and all Monthly Form
8-K's containing Distribution Date Statements filed in respect of periods
included in the year covered by this annual report, of the Banc of America
Funding 2003-1 Trust (the "Trust");
2. Based on my knowledge, the information in these reports, taken as a whole,
does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
the last day of the period covered by this annual report;
3. Based on my knowledge, the servicing information required to be provided
to the Securities Administrator by the Servicer under the Pooling and
Servicing Agreement, dated April 30, 2003, among Banc of America Funding
Corporation, as depositor, Xxxxx Fargo Home Mortgage, Inc., as servicer,
Xxxxx Fargo Bank Minnesota, National Association, as securities
administrator, and Wachovia Bank, National Association, as trustee, is
included in these reports;
4. I am responsible for reviewing the activities performed by the Servicer
under the Agreement and based upon the review required under the
Agreement, and except as disclosed in the report, the Servicer has
fulfilled its obligations under the Agreement; and
5. I have disclosed to the Trust's certified public accountants all
significant deficiencies relating to the Servicer's compliance with the
minimum servicing standards in accordance with a review conducted in
compliance with the Uniform Single Attestation Program for Mortgage
Bankers or similar standard as set forth in the Agreement.
BANC OF AMERICA FUNDING CORPORATION
By:
---------------------------------
Name:
Title:
EXHIBIT P
Form of Certification to be Provided by the Securities Administrator to the
Depositor
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2003-1
The Securities Administrator hereby certifies to the Depositor and its
officers, directors and affiliates, and with the knowledge and intent that they
will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the calendar year [___]
and the Monthly Form 8-K's containing the Distribution Date Statements
filed in respect of periods included in the year covered by such annual
report;
2. Based on my knowledge, the distribution information in the Distribution
Date Statements contained in the Monthly Form 8-K's included in the
year covered by the annual report on Form 10-K for the calendar year
[___], taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such
statements were made, not misleading as of the last day of the period
covered by that annual report; and
3. Based on my knowledge, the distribution or servicing information required
to be provided by the Securities Administrator under the Pooling and
Servicing Agreement, dated April 30, 2003, among Banc of America Funding
Corporation, as depositor, Xxxxx Fargo Home Mortgage, Inc., as servicer,
Xxxxx Fargo Bank Minnesota, National Association, as securities
administrator, and Wachovia Bank, National Association, as trustee, for
inclusion in these reports is included in these reports.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION
as Securities Administrator
By:
---------------------------------
Name:
Title:
EXHIBIT Q
Form of Certification to be Provided by the Servicer to the Depositor
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2003-1
I, [______________], a [___________] of Xxxxx Fargo Home Mortgage,
Inc., as servicer (the "Servicer") under the Pooling and Servicing Agreement,
dated April 30, 2003, among Banc of America Funding Corporation, as depositor,
Xxxxx Fargo Home Mortgage, Inc., as servicer, Xxxxx Fargo Bank Minnesota,
National Association, as Securities Administrator, and Wachovia Bank, National
Association, as Trustee, hereby certify to Banc of America Funding Corporation
(the "Depositor") and each Person, if any, who "controls" the Depositor within
the meaning of the Securities Act of 1933, as amended, and their respective
officers, directors and affiliates, and with the knowledge and intent that they
will rely upon this certification, that:
1. Based on my knowledge, the information relating to the Mortgage
Loans and the servicing thereof submitted by the Servicer to Xxxxx Fargo Bank
Minnesota, National Association (the "Securities Administrator"), which is used
in connection with preparation of the reports on Form 8-K and the annual report
on Form 10-K filed with the Securities and Exchange Commission, taken as a
whole, does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
date of this certification;
2. The servicing information required to be provided to the
Securities Administrator by the Servicer under the Pooling and Servicing
Agreement has been provided to the Securities Administrator;
3. I am responsible for reviewing the activities performed by the
Servicer under the Pooling and Servicing Agreement and based upon my knowledge
and the annual compliance review required by the Pooling and Servicing
Agreement, and except as disclosed in the Annual Statement of Compliance
delivered to the Securities Administrator and the Annual Independent Public
Accountant's Servicing Report delivered to the Securities Administrator and the
Depositor pursuant to the Pooling and Servicing Agreement, the Servicer has, as
of the date of this certification fulfilled its obligations under the Pooling
and Servicing Agreement;
4. The Annual Statement of Compliance and the Annual Independent
Public Accountant's Servicing Report disclose all significant deficiencies
relating to the Servicer's compliance with the minimum servicing standards in
accordance with a review conducted in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or similar standard as set forth in the
Pooling and Servicing Agreement; and
5. The Servicer shall indemnify and hold harmless the Depositor and
each Person, if any, who "controls" the Depositor within the meaning of the
Securities Act of 1933, as amended, and their respective officers, directors,
agents and affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments and other costs
and expenses arising out of or based upon a breach by the Servicer or any of its
officers, directors, agents or affiliates of its obligations under the Pooling
and Servicing Agreements or any material misstatement or omission contained in
this certification, or the negligence, bad faith or willful misconduct of the
Servicer in connection with the Pooling and Servicing Agreement or this
certification. If the indemnification provided for herein is unavailable or
insufficient to hold harmless such Persons, then the Servicer agrees that it
shall contribute to the amount paid or payable by such Persons as a result of
the losses, claims, damages or liabilities of such Persons in such proportion as
is appropriate to reflect the relative fault of the Depositor, on the one hand,
and the Servicer, on the other, in connection with a breach of the Servicer's
obligations under the Pooling and Servicing Agreements or any material
misstatement or omission contained in this certification or the Servicer's
negligence, bad faith or willful misconduct in connection with the Pooling and
Servicing Agreement or this certification.
Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to them in the Pooling and Servicing Agreement.
XXXXX FARGO HOME MORTGAGE, INC.,
as Servicer
------------------------------------
Name:
Title:
Dated:
-----------------------------
