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XXXX XX XXXXXXX MORTGAGE SECURITIES, INC.,
as Depositor,
BANK OF AMERICA, N.A.,
as Servicer,
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated June 24, 2003
-----------------------
Mortgage Pass-Through Certificates
Series 2003-F
================================================================================
TABLE OF CONTENTS
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.......................
Section 2.09 Repurchase of Converted Mortgage Loans.......................
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 Insurance Policy; Claims..............
Section 3.06 Rights of the Depositor and the Trustee in Respect of the
Servicer....................................................
Section 3.07 Trustee to Act as Servicer...................................
Section 3.08 Collection of Mortgage Loan Payments; 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 Indemnification; Pledge of Class SES Certificates............
Section 3.24 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 the Tax Matters Person in Respect of the Trustee...
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 Trustee to Act; Appointment of Successor.....................
Section 8.06 Notification to Certificateholders...........................
ARTICLE IX
THE TRUSTEE
Section 9.01 Duties of Trustee............................................
Section 9.02 Certain Matters Affecting the Trustee........................
Section 9.03 Trustee Not Liable for Certificates or Mortgage Loans........
Section 9.04 Trustee May Own Certificates.................................
Section 9.05 Eligibility Requirements for Trustee.........................
Section 9.06 Resignation and Removal of Trustee...........................
Section 9.07 Successor Trustee............................................
Section 9.08 Merger or Consolidation of Trustee...........................
Section 9.09 Appointment of Co-Trustee or Separate Trustee................
Section 9.10 Authenticating Agents........................................
Section 9.11 Trustee's Fees and Expenses..................................
Section 9.12 Appointment of Custodian.....................................
Section 9.13 Paying Agents................................................
Section 9.14 Limitation of Liability......................................
Section 9.15 Trustee May Enforce Claims Without Possession of
Certificates................................................
Section 9.16 Suits for Enforcement........................................
Section 9.17 Waiver of Bond Requirement...................................
Section 9.18 Waiver of Inventory, Accounting and Appraisal Requirement....
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase 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-A-1 Form of Face of Class 1-A-1 Certificate
Exhibit A-1-A-2 Form of Face of Class 1-A-2 Certificate
Exhibit A-1-A-R Form of Face of Class 1-A-R Certificate
Exhibit A-1-A-LR Form of Face of Class 1-A-LR Certificate
Exhibit A-2-A-1 Form of Face of Class 2-A-1 Certificate
Exhibit A-2-A-2 Form of Face of Class 2-A-2 Certificate
Exhibit A-2-A-3 Form of Face of Class 2-A-3 Certificate
Exhibit A-2-A-4 Form of Face of Class 2-A-4 Certificate
Exhibit A-2-A-5 Form of Face of Class 2-A-5 Certificate
Exhibit A-2-A-6 Form of Face of Class 2-A-6 Certificate
Exhibit A-2-A-7 Form of Face of Class 2-A-7 Certificate
Exhibit A-3-A-1 Form of Face of Class 3-A-1 Certificate
Exhibit A-A-P Form of Face of Class A-P Certificate
Exhibit A-SES Form of Face of Class SES Certificate
Exhibit A-WIO Form of Face of Class 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-1 Mortgage Loan Schedule (Loan Group 1)
Exhibit D-2 Mortgage Loan Schedule (Loan Group 2)
Exhibit D-3 Mortgage Loan Schedule (Loan Group 3)
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
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated June 24, 2003, is
hereby executed by and among BANC OF AMERICA MORTGAGE SECURITIES, INC., as
depositor (together with its permitted successors and assigns, the "Depositor"),
BANK OF AMERICA, N.A., as servicer (together with its permitted successors and
assigns, the "Servicer"), and XXXXX FARGO BANK MINNESOTA, 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 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 two separate real estate mortgage
investment conduits (the "Upper-Tier REMIC" and the "Lower-Tier REMIC,"
respectively, and each, a "REMIC"). The Class A Certificates (other than the
Class 1-A-R, Class 1-A-LR and Class A-P Certificates) and the Class B
Certificates are referred to collectively as the "Regular Certificates" and
shall constitute "regular interests" in the Upper-Tier REMIC. The Class 1-A-P
Component, Class 2-A-P Component, Class 3-A-P Component, Class 1-SES Component,
Class 2-SES Component, Class 3-SES Component, Class 1-WIO Component, Class 2-WIO
Component and Class 3-WIO Component (collectively, the "Components") shall also
constitute "regular interests" in the Upper-Tier REMIC. The Uncertificated
Lower-Tier Interests shall constitute the "regular interests" in the Lower-Tier
REMIC. The Class 1-A-R Certificate shall be the "residual interest" in the
Upper-Tier REMIC and the Class 1-A-LR Certificate shall be the "residual
interest" in the Lower-Tier REMIC. The Certificates and the Uncertificated
Lower-Tier Interests will represent the entire beneficial ownership interest in
the Trust. The "latest possible maturity date" for federal income tax purposes
of all interests created hereby will be the REMIC Certificate Maturity Date.
The following table sets forth characteristics of the
Certificates and the Components, 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):
================= ================= ============ ============= =================
Initial Class Integral
Certificate Multiples
Balance or Pass-Through Minimum in Excess
Classes Notional Amount Rate Denomination of Minimum
----------------- ----------------- ------------ ------------- -----------------
Class 1-A-1 $238,032,000.00 (1) $1,000 $1
Class 1-A-2 $6,731,000.00 (1) $1,000 $1
Class 1-A-R $50.00 (1) $50 N/A
Class 1-A-LR $50.00 (1) $50 N/A
Class 2-A-1 $223,650,000.00 (2) $1,000 $1
Class 2-A-2 $50,000,000.00 (3) $1,000 $1
Class 2-A-3 $290,184,000.00 (4) $1,000 $1
Class 2-A-4 $30,000,000.00 (4) $1,000 $1
Class 2-A-5 $100,000,000.00 (5) $1,000 $1
Class 2-A-6 $849,000.00 (4) $1,000 $1
Class 2-A-7 $2,828,000.00 (5) $1,000 $1
Class 3-A-1 $92,324,000.00 (6) $1,000 $1
Class A-P $401,285.00 (7) $25,000 $1
Class B-1 $13,905,000.00 (8) $25,000 $1
Class B-2 $6,386,000.00 (8) $25,000 $1
Class B-3 $3,725,000.00 (8) $25,000 $1
Class B-4 $1,596,000.00 (8) $25,000 $1
Class B-5 $1,597,000.00 (8) $25,000 $1
Class B-6 $2,129,024.00 (8) $25,000 $1
Class SES $1,064,337,410.32 (9) $25,000 $1
Class WIO $1,058,284,091.50 (10) $25,000 $1
Initial
Component Integral
Balance or Multiples In
Component Pass-Through Minimum Excess Of
Components Notional Amount Rate Denomination Minimum
----------------- ----------------- ------------ ------------- --------------
Class 1-A-P $16,167.06 (11) N/A N/A
Class 2-A-P $364,453.67 (11) N/A N/A
Class 3-A-P $20,665.22 (11) N/A N/A
Class 1-SES $251,770,687.78 0.325% N/A N/A
Class 2-SES $717,610,607.16 0.200% N/A N/A
Class 3-SES $94,956,115.38 0.200% N/A N/A
Class 1-WIO $251,270,687.78 (12) N/A N/A
Class 2-WIO $712,392,804.22 (12) N/A N/A
Class 3-WIO $94,620,599.50 (12) N/A N/A
(1) For each Distribution Date occurring prior to and including the Distribution
Date in March 2006, interest will accrue on these Certificates at a rate equal
to 2.969% per annum. For each Distribution Date occurring after the Distribution
Date in March 2006 and prior to the Distribution Date in June 2006, interest
will accrue on these Certificates at a per annum rate equal to the Adjusted Net
WAC of the Group 1 Mortgage Loans. For each Distribution Date occurring on and
after the Distribution Date in June 2006, interest will accrue on these
Certificates at a per annum rate equal to the weighted average of the Net
Mortgage Interest Rates of the Group 1 Mortgage Loans (based on the Stated
Principal Balances of the Group 1 Mortgage Loans on the Due Date in the month
preceding the month of such Distribution Date).
(2) For each Distribution Date occurring prior to and including the Distribution
Date in February 2008, interest will accrue on these Certificates at a rate
equal to 3.734% per annum. For each Distribution Date occurring after the
Distribution Date in February 2008 and prior to the Distribution Date in June
2008, interest will accrue on these Certificates at a per annum rate equal to
the Adjusted Net WAC of the Group 2 Mortgage Loans plus 0.0950659%. For each
Distribution Date occurring on and after the Distribution Date in June 2008,
interest will accrue on these Certificates at a per annum rate equal to the
weighted average of the Net Mortgage Interest Rates of the Group 2 Mortgage
Loans (based on the Stated Principal Balances of the Group 2 Mortgage Loans on
the Due Date in the month preceding the month of such Distribution Date).
(3) For each Distribution Date occurring prior to and including the Distribution
Date in February 2008, interest will accrue on these Certificates at a rate
equal to 4.237% per annum. For each Distribution Date occurring after the
Distribution Date in February 2008 and prior to the Distribution Date in June
2008, interest will accrue on these Certificates at a per annum rate equal to
the Adjusted Net WAC of the Group 2 Mortgage Loans plus 0.5980659%. For each
Distribution Date occurring on and after the Distribution Date in June 2008,
interest will accrue on these Certificates at a per annum rate equal to the
weighted average of the Net Mortgage Interest Rates of the Group 2 Mortgage
Loans (based on the Stated Principal Balances of the Group 2 Mortgage Loans on
the Due Date in the month preceding the month of such Distribution Date).
(4) For each Distribution Date occurring prior to and including the Distribution
Date in February 2008, interest will accrue on these Certificates at a rate
equal to 3.419% per annum. For each Distribution Date occurring after the
Distribution Date in February 2008 and prior to the Distribution Date in June
2008, interest will accrue on these Certificates at a per annum rate equal to
the Adjusted Net WAC of the Group 2 Mortgage Loans minus 0.2199341%. For each
Distribution Date occurring on and after the Distribution Date in June 2008,
interest will accrue on these Certificates at a per annum rate equal to the
weighted average of the Net Mortgage Interest Rates of the Group 2 Mortgage
Loans (based on the Stated Principal Balances of the Group 2 Mortgage Loans on
the Due Date in the month preceding the month of such Distribution Date).
(5) For each Distribution Date occurring prior to and including the Distribution
Date in February 2008, interest will accrue on these Certificates at a rate
equal to 3.828% per annum. For each Distribution Date occurring after the
Distribution Date in February 2008 and prior to the Distribution Date in June
2008, interest will accrue on these Certificates at a per annum rate equal to
the Adjusted Net WAC of the Group 2 Mortgage Loans plus 0.1890659%. For each
Distribution Date occurring on and after the Distribution Date in June 2008,
interest will accrue on these Certificates at a per annum rate equal to the
weighted average of the Net Mortgage Interest Rates of the Group 2 Mortgage
Loans (based on the Stated Principal Balances of the Group 2 Mortgage Loans on
the Due Date in the month preceding the month of such Distribution Date).
(6) For each Distribution Date occurring prior to and including the Distribution
Date in May 2010, interest will accrue on these Certificates at a rate equal to
3.994% per annum. For each Distribution Date occurring after the Distribution
Date in May 2010, interest will accrue on these Certificates at a per annum rate
equal to the weighted average of the Net Mortgage Interest Rates of the Group 3
Mortgage Loans (based on the Stated Principal Balances of the Group 3 Mortgage
Loans on the Due Date in the month preceding the month of such Distribution
Date).
(7) The Class A-P Certificates will be deemed for purposes of the distribution
of interest and principal to consist of two components (the "Class A-P
Components") described in the table. The Components are not severable.
(8) For each Distribution Date, interest will accrue on these Certificates at a
per annum rate equal to the weighted average (based on the Group Subordinate
Amount for each Loan Group) of (i) with respect to Loan Group 1, the Adjusted
Net WAC of the Group 1 Mortgage Loans prior to and including the Distribution
Date in May 2006, and on and after the Distribution Date in June 2006, the
weighted average of the Net Mortgage Interest Rates of the Group 1 Mortgage
Loans (based on the Stated Principal Balances of such Group 1 Mortgage Loans on
the Due Date in the month preceding the month of such Distribution Date), (ii)
with respect to Loan Group 2, the Adjusted Net WAC of the Group 2 Mortgage Loans
prior to and including the Distribution Date in May 2008, and on and after the
Distribution Date in June 2008, the weighted average of the Net Mortgage
Interest Rates of the Group 2 Mortgage Loans (based on the Stated Principal
Balances of such Group 2 Mortgage Loans on the Due Date in the month preceding
the month of such Distribution Date) and (iii) with respect to Loan Group 3, the
Adjusted Net WAC of the Group 3 Mortgage Loans prior to and including the
Distribution Date in May 2010, and on and after the Distribution Date in June
2010, the weighted average of the Net Mortgage Interest Rates of the Group 3
Mortgage Loans (based on the Stated Principal Balances of such Group 3 Mortgage
Loans on the Due Date in the month preceding the month of such Distribution
Date). For the initial Distribution Date in July 2003, this rate will be
3.51089023% per annum.
(9) The Class SES Certificates will be deemed for purposes of the distribution
of interest to consist of three components described in the table. The
Components are not severable.
(10) The Class WIO Certificates will be deemed for purposes of the distribution
of interest to consist of three components described in the table. The
Components are not severable.
(11) Interest will accrue on each Class A-P Component at a per annum rate equal
to (i) for the Class 1-A-P Component on each Distribution Date on and after the
Distribution Date in June 2006, the weighted average of the Net Mortgage
Interest Rates of the Group 1 Mortgage Loans (based on the Stated Principal
Balances of the Group 1 Mortgage Loans on the Due Date in the month preceding
the month of such Distribution Date), (ii) for the Class 2-A-P Component for
each Distribution Date on and after the Distribution Date in June 2008, the
weighted average of the Net Mortgage Interest Rates of the Group 2 Mortgage
Loans (based on the Stated Principal Balances of the Group 2 Mortgage Loans on
the Due Date in the month preceding the month of such Distribution Date) and
(iii) for the Class 3-A-P Component on and after the Distribution Date in June
2010, the weighted average of the Net Mortgage Interest Rates of the Group 3
Mortgage Loans (based on the Stated Principal Balances of the Group 3 Mortgage
Loans on the Due Date in the month preceding the month of such Distribution
Date).
(12) Interest will accrue on any Distribution Date at a per annum rate equal to
(i) for the Class 1-WIO Component, the weighted average of the WIO Rates of the
Group 1 Premium Mortgage Loans (based on the Stated Principal Balances of the
Group 1 Premium Mortgage Loans on the Due Date in the month preceding the month
of such Distribution Date), (ii) for the Class 2-WIO Component, the weighted
average of the WIO Rates of the Group 2 Premium Mortgage Loans (based on the
Stated Principal Balances of the Group 2 Premium Mortgage Loans on the Due Date
in the month preceding the month of such Distribution Date) and (iii) for the
Class 3-WIO Component, the weighted average of the WIO Rates of the Group 3
Premium Mortgage Loans (based on the Stated Principal Balances of the Group 3
Premium Mortgage Loans on the Due Date in the month preceding the month of such
Distribution Date). The Pass-Through Rates on each of the Class 1-WIO Component,
the Class 2-WIO Component and the Class 3-WIO Component will be zero on and
after the Distribution Date in the month following the month of the initial Rate
Adjustment Date for the Premium Mortgage Loan in Loan Group 1, Loan Group 2 and
Loan Group 3, respectively, with the latest initial Rate Adjustment Date.
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 (other than the Class A-P, Class SES and Class WIO
Certificates), 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. For any Distribution Date and the Class A-P
Certificates, the sum of the Accrued Component Interest for each Class A-P
Component. For any Distribution Date and the Class SES Certificates, the sum of
the Accrued Component Interest for each Class SES Component. For any
Distribution Date and the Class WIO Certificates, the sum of the Accrued
Component Interest for each Class WIO Component.
Accrued Component Interest: For any Distribution Date and each
Class A-P Component, Class SES Component or Class WIO Component, one month's
interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the applicable Component Balance or Notional Amount.
Adjusted Net WAC: As to any Distribution Date and any Loan
Group, the fraction, expressed as a percentage, equal to (A) the sum of the
product, for each Mortgage Loan of such Group, of (i) the Net Mortgage Interest
Rate for such Mortgage Loan multiplied by (ii) the Stated Principal Balance of
such Mortgage Loan on the Due Date of the month preceding the month of such
Distribution Date divided by (B) the sum of the product, for each such Mortgage
Loan, of (i) the Non-Ratio Strip Percentage for such Mortgage Loan multiplied by
(ii) the Stated Principal Balance of such Mortgage Loan on the Due Date of the
month preceding the month of such Distribution Date.
Adjusted Pool Amount: With respect to any Distribution Date
and Loan Group, the Cut-Off Date Pool Principal Balance of the Mortgage Loans in
such Loan Group minus the sum of (i) all amounts in respect of principal
received in respect of the Mortgage Loans in such Loan Group (including, without
limitation, amounts received as Monthly Payments, Periodic Advances, Principal
Prepayments, Liquidation Proceeds and Substitution Adjustment Amounts) and
distributed to Holders of the Certificates 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 such Mortgage Loans from the
Cut-Off Date through the end of the month preceding such Distribution Date.
Adjusted Pool Amount (Ratio Strip Portion): With respect to
any Distribution Date and any Loan Group, the sum of the amounts, calculated as
follows, with respect to all Outstanding Mortgage Loans of such Loan Group: the
product of (i) the Ratio Strip 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.
Aggregate Subordinate Percentage: As to any Distribution Date,
the aggregate Class Certificate Balance of the Subordinate Certificates divided
by the aggregate Pool Stated Principal Balance (Non-Ratio Strip Portion) for all
Loan Groups.
Agreement: This Pooling and Servicing Agreement together with
all amendments hereof and supplements hereto.
Amount Held for Future Distribution: As to any Distribution
Date and Loan Group, the total of the amounts held in the Servicer Custodial
Account at the close of business on the preceding Determination Date on account
of (i) Principal Prepayments and Liquidation Proceeds received or made on the
Mortgage Loans in such Loan Group in the month of such Distribution Date and
(ii) payments which represent receipt of Monthly Payments on the Mortgage Loans
in such Loan Group in respect of a Due Date or Due Dates subsequent to the
related Due Date.
Ancillary Income: All prepayment penalties, assumption fees,
late payment charges and all other ancillary income and fees with respect to the
Mortgage Loans, to the extent not required to be deposited in the Servicer
Custodial Account pursuant to clauses (i) through (viii) of Section 3.08(b).
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 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.
Bank of America: Bank of America, N.A., a national banking
association, or its successor in interest.
Book-Entry Certificate: All Classes of Certificates other than
the Physical Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday or
(ii) a day on which banking institutions in the State of North Carolina, the
State of New York, the State of Minnesota, the State of Kentucky, 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 Mortgage Securities,
Inc. Mortgage Pass-Through Certificates, Series 2003-F that are issued pursuant
to this Agreement.
Certificate Account: The Eligible Account created and
maintained by the Trustee pursuant to Section 3.08(c) in the name of the Trustee
for the benefit of the Certificateholders and designated "Xxxxx Fargo Bank
Minnesota, National Association, in trust for registered holders of Banc of
America Mortgage Securities, Inc. Mortgage Pass-Through Certificates, Series
2003-F." The Certificate Account shall be deemed to consist of four
sub-accounts; one for each Group and a fourth sub-account referred to herein as
the Upper-Tier Certificate Sub-Account. Funds in the Certificate Account shall
be held in trust for the Holders of the Certificates of such Group 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 Trustee.
Certificate Owner: With respect to a Book-Entry Certificate,
the Person who is the beneficial owner of a Book-Entry Certificate. With respect
to any Definitive Certificate, the Certificateholder of such Certificate.
Certificate Register: The register maintained pursuant to
Section 6.02.
Certificate Registrar: The registrar appointed pursuant to
Section 6.02.
Certificateholder: The Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor, the Servicer or any affiliate thereof shall be deemed not
to be outstanding and the Percentage Interest and Voting Rights evidenced
thereby shall not be taken into account in determining whether the requisite
amount of Percentage Interests or Voting Rights, as the case may be, necessary
to effect any such consent has been obtained, unless such entity is the
registered owner of the entire Class of Certificates, provided that the Trustee
shall not be responsible for knowing that any Certificate is registered in the
name of such an affiliate unless one of its Responsible Officers has actual
knowledge.
Certification: As defined in Section 3.22.
Class: As to the Certificates, the Class 1-A-1, Class 1-A-2,
Class 1-A-R, Class 1-A-LR, Class 2-A-1, Class 2-A-2, Class 2-A-3, Class 2-A-4,
Class 2-A-5, Class 2-A-6, Class 2-A-7, Class 3-A-1, Class A-P, Class SES, Class
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 1-A-1 Loss Amount: With respect to any Distribution Date
after the Senior Credit Support Depletion Date, the amount, if any, by which the
Class Certificate Balance of the Class 1-A-1 Certificates would be reduced as a
result of the allocation of any Realized Loss to such Class pursuant to Section
5.03(a)(ii) or the allocation of any reduction pursuant to Section 5.03(b) to
such Class, in each case without regard to the operation of Section 5.03(e).
Class 1-A-2 Loss Allocation Amount: With respect to any
Distribution Date after the Senior Credit Support Depletion Date, the lesser of
(a) the Class Certificate Balance of the Class 1-A-2 Certificates with respect
to such Distribution Date prior to any reduction for the Class 1-A-2 Loss
Allocation Amount and (b) the Class 1-A-1 Loss Amount with respect to such
Distribution Date.
Class 1-SES Notional Amount: As to any Distribution Date and
the Class 1-SES Component, the aggregate Stated Principal Balance of the Group 1
Mortgage Loans on the Due Date in the month preceding the month of such
Distribution Date.
Class 1-WIO Notional Amount: As to any Distribution Date, the
aggregate Stated Principal Balance of the Group 1 Premium Mortgage Loans on the
Due Date in the month preceding the month of such Distribution Date.
Class 2-A-4 Loss Amount: With respect to any Distribution Date
after the Senior Credit Support Depletion Date, the amount, if any, by which the
Class Certificate Balance of the Class 2-A-4 Certificates would be reduced as a
result of the allocation of any Realized Loss to such Class pursuant to Section
5.03(a)(ii) or the allocation of any reduction pursuant to Section 5.03(b) to
such Class, in each case without regard to the operation of Section 5.03(e).
Class 2-A-5 Loss Amount: With respect to any Distribution Date
after the Senior Credit Support Depletion Date, the amount, if any, by which the
Class Certificate Balance of the Class 2-A-5 Certificates would be reduced as a
result of the allocation of any Realized Loss to such Class pursuant to Section
5.03(a)(ii) or the allocation of any reduction pursuant to Section 5.03(b) to
such Class, in each case without regard to the operation of Section 5.03(e).
Class 2-A-6 Loss Allocation Amount: With respect to any
Distribution Date after the Senior Credit Support Depletion Date, the lesser of
(a) the Class Certificate Balance of the Class 2-A-6 Certificates with respect
to such Distribution Date prior to any reduction for the Class 2-A-6 Loss
Allocation Amount and (b) the Class 2-A-4 Loss Amount with respect to such
Distribution Date.
Class 2-A-7 Loss Allocation Amount: With respect to any
Distribution Date after the Senior Credit Support Depletion Date, the lesser of
(a) the Class Certificate Balance of the Class 2-A-7 Certificates with respect
to such Distribution Date prior to any reduction for the Class 2-A-7 Loss
Allocation Amount and (b) the Class 2-A-5 Loss Amount with respect to such
Distribution Date.
Class 2-SES Notional Amount: As to any Distribution Date and
the Class 2-SES Component, the aggregate Stated Principal Balance of the Group 2
Mortgage Loans on the Due Date in the month preceding the month of such
Distribution Date.
Class 2-WIO Notional Amount: As to any Distribution Date, the
aggregate Stated Principal Balance of the Group 2 Premium Mortgage Loans on the
Due Date in the month preceding the month of such Distribution Date.
Class 3-SES Notional Amount: As to any Distribution Date and
the Class 3-SES Component, the aggregate Stated Principal Balance of the Group 3
Mortgage Loans on the Due Date in the month preceding the month of such
Distribution Date.
Class 3-WIO Notional Amount: As to any Distribution Date, the
aggregate Stated Principal Balance of the Group 3 Premium Mortgage Loans on the
Due Date in the month preceding the month of such Distribution Date.
Class A Certificates: The Class 1-A-1, Class 1-A-2, Class
1-A-R, Class 1-A-LR, Class 2-A-1, Class 2-A-2, Class 2-A-3, Class 2-A-4, Class
2-A-5, Class 2-A-6, Class 2-A-7, Class 3-A-1 and Class A-P Certificates.
Class A-P Component: Any of the Class 1-A-P Component, Class
2-A-P Component or Class 3-A-P Component.
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-P, Class SES and Class 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), (iii) all other
reductions in Class Certificate Balance previously allocated thereto pursuant to
Section 5.03(b) and (iv) in the case of the Class 1-A-2, Class 2-A-6 and Class
2-A-7, any reduction allocated thereto pursuant to Section 5.03(e). The Class
WIO and Class SES Certificates are Interest-Only Certificates and have no Class
Certificate Balance. The Class Certificate Balance of the Class A-P Certificates
as of any date of determination shall equal the sum of the Component Balances of
the Class A-P Components.
Class Interest Shortfall: For any Distribution Date and each
interest-bearing Class (other than the Class A-P, Class SES and Class WIO
Certificates), the amount by which Accrued Certificate Interest for such Class
(as reduced pursuant to Section 5.02(c)) exceeds the amount of interest actually
distributed on such Class on such Distribution Date pursuant to clause (i) of
the definition of "Interest Distribution Amount." For any Distribution Date and
the Class A-P Certificates, the sum of the Component Interest Shortfall for each
Component. For any Distribution Date and the Class SES Certificates, the sum of
the Component Interest Shortfall for each Component. For any Distribution Date
and the Class WIO Certificates, the sum of the Component Interest Shortfall for
each Component. Class SES Compensating Interest: With respect to each
Distribution Date, the least of (a) the amount distributable pursuant to Section
5.02(a)(i) on the Class SES Components (before any reduction in respect of Class
SES Compensating Interest), (b) the Prepayment Interest Shortfall for such
Distribution Date less the Servicer Compensating Interest for such Distribution
Date and (c) one-twelfth of 0.25% of the aggregate Pool Stated Principal Balance
of all Loan Groups less the Servicer Compensating Interest for such Distribution
Date.
Class SES Component: Any of the Class 1-SES Component, Class
2-SES Component or Class 3-SES Component.
Class SES Notional Amount: As to any Distribution Date, the
sum of the Class 1-SES Notional Amount, the Class 2-SES Notional Amount and the
Class 3-SES Notional Amount.
Class WIO Component: Any of the Class 1-WIO Component, Class
2-WIO Component or Class 3-WIO Component.
Class WIO Notional Amount: As to any Distribution Date, the
sum of the Class 1-WIO Notional Amount, the Class 2-WIO Notional Amount and the
Class 3-WIO Notional Amount.
Class Unpaid Interest Shortfall: As to any Distribution Date
and each interest-bearing Class (other than the Class A-P, Class SES and Class
WIO Certificates), the amount by which the aggregate Class Interest Shortfalls
for such Class on prior Distribution Dates exceeds the amount of interest
actually distributed on such Class on such prior Distribution Dates pursuant to
clause (ii) of the definition of "Interest Distribution Amount." As to any
Distribution Date and the Class A-P Certificates, the sum of the Component
Unpaid Interest Shortfalls for the Class A-P Components. As to any Distribution
Date and the Class SES Certificates, the sum of the Component Unpaid Interest
Shortfalls for the Class SES Components. As to any Distribution Date and the
Class WIO Certificates, the sum of the Component Unpaid Interest Shortfalls for
the Class WIO Components
Closing Date: June 24, 2003.
Code: The Internal Revenue Code of 1986, as amended.
Collateral: As defined in Section 3.23.
Compensating Interest: With respect to any Distribution Date,
the sum of the Servicer Compensating Interest and the Class SES Compensating
Interest.
Component: As defined in the Preliminary Statement.
Component Balance: With respect to any Class A-P Component and
any date of determination, the Initial Component Balance of such Component 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 Component Balance previously allocated thereto pursuant to
Section 5.03(b). The Class SES and Class WIO Components are interest-only
Components and have no Component Balance.
Component Interest Distribution Amount: For any Distribution
Date and each Class A-P, Class SES and Class WIO Component, the sum of (i) the
Accrued Component Interest (subject, in the case of any Class A-P Component, to
reduction pursuant to Section 5.02(c) and (ii) any Component Unpaid Interest
Shortfall for such Component. The Class 1-A-P, Class 2-A-P and Class 3-A-P
Components are principal-only Components until the Distribution Dates in June
2006, June 2008 and June 2010, respectively, and are not entitled to
distributions of interest until such time.
Component Interest Shortfall: For any Distribution Date and
(i) each Class A-P Component, the amount by which Accrued Component Interest for
such Component (as reduced pursuant to Section 5.02(c)) exceeds the amount of
interest actually distributed on such Component on such Distribution Date
pursuant to clause (i) of the definition of "Component Interest Distribution
Amount," (ii) each Class SES Component, the amount by which Accrued Component
Interest for such Component exceeds the amount of interest actually distributed
on such Component on such Distribution Date pursuant to clause (i) of the
definition of "Component Interest Distribution Amount" and (iii) each Class WIO
Component, the amount by which Accrued Component Interest for such Component
exceeds the amount of interest actually distributed on such Component on such
Distribution Date pursuant to clause (i) of the definition of "Component
Interest Distribution Amount." For purposes of the foregoing, any Accrued
Component Interest used to pay Class SES Compensating Interest will be
considered to be actually distributed to the applicable Class SES Component.
Component Notional Amount: As of any Distribution Date, any of
the Class 1-SES Notional Amount, Class 1-WIO Notional Amount, Class 2-SES
Notional Amount, Class 2-WIO Notional Amount, Class 3-SES Notional Amount or
Class 3-WIO Notional Amount.
Component Unpaid Interest Shortfall: As to any Distribution
Date and a Class A-P, Class SES or Class WIO Component, the amount by which the
aggregate Component Interest Shortfalls for such Component on prior Distribution
Dates exceeds the amount of interest actually distributed on such Component on
such prior Distribution Dates pursuant to clause (ii) of the definition of
"Component Interest Distribution Amount."
Conversion Date: The date on which a Mortgage Loan becomes a
Converted Mortgage Loan.
Converted Mortgage Loan: Any Mortgage Loan as to which the
related Mortgagor has exercised its option pursuant to the related Mortgage Note
to convert the adjustable rate of interest on such Mortgage Loan to a fixed rate
of interest.
Co-op Shares: Shares issued by private non-profit housing
corporations.
Corporate Trust Office: The principal corporate trust office
of the Trustee at which at any particular time its corporate trust business with
respect to this Agreement is conducted, which office at the date of the
execution of this instrument is located at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000-0000, Attention: Corporate Trust Services - BOAMS 2003-F, and for
certificate transfer purposes is located at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Services - BOAMS
2003-F, or at such other address as the Trustee may designate from time to time
by notice to the Certificateholders, the Depositor 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: June 1, 2003.
Cut-Off Date Pool Principal Balance: For each Loan Group the
aggregate of the Cut-Off Date Principal Balances of the Mortgage Loans in such
Loan Group which is $251,770,687.78 for Loan Group 1, $717,610,607.16 for Loan
Group 2 and $94,956,115.38 for Loan Group 3.
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 or 2.04.
Deficient Valuation: As to any Mortgage Loan and any
Determination Date, the excess of (i) the then outstanding indebtedness under
such Mortgage Loan over (ii) the secured valuation thereof established by a
court of competent jurisdiction (pursuant to an order which has become final and
nonappealable) as a result of a proceeding initiated by or against the related
Mortgagor under the Bankruptcy Code, as amended from time to time (11 U.S.C.),
pursuant to which such Mortgagor retained such Mortgaged Property; provided that
no such excess shall be considered a Deficient Valuation so long as (a) the
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 Mortgage Securities, Inc., 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 Group 1 Discount Mortgage Loan,
Group 2 Discount Mortgage Loan or Group 3 Discount Mortgage Loan.
Distribution Date: The 25th day of each month beginning in
July 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) Bank of America, 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 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, acting in its fiduciary capacity or
(iv) any other account acceptable to each Rating Agency. Eligible Accounts may
bear interest and may include, if otherwise qualified under this definition,
accounts maintained with the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificates: Any Class SES, Class WIO, 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 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 Trustee.
FIRREA: The Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as amended.
Fitch: Fitch Ratings, or any successor thereto.
FNMA: Xxxxxx Xxx, or any successor thereto.
Form 10-K: As defined in Section 3.22.
Fractional Interest: As defined in Section 5.02(d).
Gross Margin: As to each Mortgage Loan, the fixed percentage
set forth in the related Mortgage Note and indicated in the Mortgage Loan
Schedule as the "Gross Margin," which percentage is added to the Index on each
Rate Adjustment Date to determine (subject to rounding, the Periodic Cap and the
Lifetime Cap) the Mortgage Interest Rate on such Mortgage Loan until the next
Rate Adjustment Date.
Group: Any of Group 1, Group 2 or Group 3.
Group 1: The Group 1-A Certificates, the Class 1-A-P
Component, Class 1-SES Component and Class 1-WIO Component.
Group 1 Discount Mortgage Loan: A Group 1 Mortgage Loan with a
Net Mortgage Interest Rate as of the Closing Date that is less than 2.9690000%
per annum.
Group 1 Lower-Tier Rate: For each Distribution Date occurring
prior to and including the Distribution Date in March 2006, interest will accrue
on these Certificates at a rate equal to 2.969% per annum. For each Distribution
Date occurring on and after the Distribution Date in April 2006, interest will
accrue on these Certificates at a per annum rate equal to the weighted average
of the Net Mortgage Interest Rates of the Group 1 Mortgage Loans (based on the
Stated Principal Balances of the Group 1 Mortgage Loans on the Due Date in the
month preceding the month of such Distribution Date).
Group 1 Mortgage Loan: Each Mortgage Loan listed on Exhibit
D-1 hereto.
Group 1 Premium Mortgage Loan: A Group 1 Mortgage Loan with a
Net Mortgage Interest Rate as of the Closing Date that is equal to or greater
than 2.9690000% per annum.
Group 2: The Group 2-A Certificates, the Class 2-A-P
Component, the Class 2-SES Component and Class 2-WIO Component.
Group 2 Discount Mortgage Loan: A Group 2 Mortgage Loan with a
Net Mortgage Interest Rate as of the Closing Date that is less than 3.6389341%
per annum.
Group 2 Lower-Tier Rate: For each Distribution Date occurring
prior to and including the Distribution Date in February 2008, interest will
accrue on these Certificates at a rate equal to 3.6389341% per annum. For each
Distribution Date occurring after the Distribution Date in February 2008 and
prior to the Distribution Date in June 2008, interest will accrue on these
Certificates at a per annum rate equal to the Adjusted Net WAC of the Group 2
Mortgage Loans. For each Distribution Date occurring on and after the
Distribution Date in June 2008, interest will accrue on these Certificates at a
per annum rate equal to the weighted average of the Net Mortgage Interest Rates
of the Group 2 Mortgage Loans (based on the Stated Principal Balances of the
Group 2 Mortgage Loans on the Due Date in the month preceding the month of such
Distribution Date).
Group 2 Mortgage Loan: Each Mortgage Loan listed on Exhibit
D-2 hereto.
Group 2 Premium Mortgage Loan: A Group 2 Mortgage Loan with a
Net Mortgage Interest Rate as of the Closing Date that is equal to or greater
than 3.6389341% per annum.
Group 3: The Group 3-A Certificates, the Class 3-A-P
Component, the Class 3-SES Component and Class 3-WIO Component.
Group 3 Discount Mortgage Loan: A Group 3 Mortgage Loan with a
Net Mortgage Interest Rate as of the Closing Date that is less than 3.9940000%
per annum.
Group 3 Lower-Tier Rate: For each Distribution Date occurring
prior to and including the Distribution Date in May 2010, interest will accrue
on these Certificates at a rate equal to 3.994% per annum. For each Distribution
Date occurring after the Distribution Date in May 2010, interest will accrue on
these Certificates at a per annum rate equal to the weighted average of the Net
Mortgage Interest Rates of the Group 3 Mortgage Loans (based on the Stated
Principal Balances of the Group 3 Mortgage Loans on the Due Date in the month
preceding the month of such Distribution Date).
Group 3 Mortgage Loan: Each Mortgage Loan listed on Exhibit
D-3 hereto.
Group 3 Premium Mortgage Loan: A Group 3 Mortgage Loan with a
Net Mortgage Interest Rate as of the Closing Date that is equal to or greater
than 3.9940000% per annum.
Group 1-A Certificates: Class 1-A-1, Class 1-A-2, Class 1-A-R
and Class 1-A-LR Certificates.
Group 2-A Certificates: Class 2-A-1, Class 2-A-2, Class 2-A-3,
Class 2-A-4, Class 2-A-5, Class 2-A-6 and Class 2-A-7 Certificates.
Group 3-A Certificates: Class 3-A-1 Certificates.
Group Subordinate Amount: With respect to any Distribution
Date and any Loan Group, the excess of the Pool Stated Principal Balance
(Non-Ratio Strip Portion) for such Loan Group over the aggregate Class
Certificate Balance of the Class A Certificates (other than the Class A-P
Certificates) of the Related Group immediately prior to such date.
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.
Index: As to any Mortgage Loan and Rate Adjustment Date, a
rate per annum that is defined to be the arithmetic mean of the London interbank
offered rate quotations for one year U.S. Dollar-denominated deposits, as
published in The Wall Street Journal and most recently available either (i) as
of the first Business Day in the month preceding the month of the applicable
Rate Adjustment Date or (ii) forty-five days before the applicable Rate
Adjustment Date or, in the event that such index is no longer available, a
substitute index selected by the Servicer in accordance with the terms of the
related Mortgage Note.
Initial Class Certificate Balance: As to each Class of
Certificates (other than the Class SES and Class WIO Certificates), the Class
Certificate Balance set forth in the Preliminary Statement. The Class SES and
Class WIO Certificates are Interest-Only Certificates and have no Initial Class
Certificate Balance.
Initial Component Balance: As to each Class A-P Component, the
Component Balance set forth in the Preliminary Statement. The Class SES and
Class WIO Components are interest-only Components and have no Initial Component
Balance.
Initial Component Notional Amount: As to each Class SES or
Class WIO Component, the Component Notional Amount set forth in the Preliminary
Statement.
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-P, Class SES and Class WIO
Certificates) and Component (other than with respect to the Class 1-A-P
Component until the June 2006 Distribution Date, the Class 2-A-P Component until
the June 2008 Distribution Date or the Class 3-A-P Component until the June 2010
Distribution Date), 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 (other than the Class A-P, Class SES and Class WIO
Certificates), the sum of (i) the Accrued Certificate Interest, subject to
reduction pursuant to Section 5.02(c) and (ii) any Class Unpaid Interest
Shortfall for such Class. For any Distribution Date and the Class A-P, Class SES
and Class WIO Certificates, the sum of the Component Interest Distribution
Amounts for the Class A-P, Class SES and Class WIO Components, respectively.
Interest-Only Certificates: Any Class of Certificates entitled
to distributions of interest, but no distributions of principal. The Class SES
and Class WIO Certificates are the only Classes of Interest-Only Certificates.
Lifetime Cap: As to any Mortgage Loan, the maximum Mortgage
Interest Rate set forth in the related Mortgage Note and indicated in the
Mortgage Loan Schedule.
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 Group: Any of Loan Group 1, Loan Group 2 or Loan Group 3.
Loan Group 1: The Group 1 Mortgage Loans.
Loan Group 2: The Group 2 Mortgage Loans.
Loan Group 3: The Group 3 Mortgage Loans.
Loan-to-Value Ratio: With respect to any Mortgage Loan and any
date of determination, the fraction, expressed as a percentage, the numerator of
which is the outstanding principal balance of the related Mortgage Loan at the
date of determination and the denominator of which is the Appraised Value of the
related Mortgaged Property.
Lower-Tier Distribution Amount: As defined in Section 5.02(a).
Lower-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account (other than Ancillary Income and
amounts held in respect of the Upper-Tier Certificate Sub-Account), the
insurance policies, if any, relating to a Mortgage Loan and property which
secured a Mortgage Loan and which has been acquired by foreclosure or deed in
lieu of foreclosure.
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.
Mortgage: The mortgage, deed of trust or other instrument
creating a first lien on a Mortgaged Property securing a Mortgage Note or
creating a first lien on a leasehold interest.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: As to any Mortgage Loan, the per annum
rate of interest at which interest accrues on the principal balance of such
Mortgage Loan, as adjusted from time to time in accordance with the provisions
of the related Mortgage Note, which rate is (a) prior to the first Rate
Adjustment Date for each such Mortgage Loan, the initial Mortgage Interest Rate
for such Mortgage Loan indicated on the Mortgage Loan Schedule and (b) from and
after such Rate Adjustment Date, the sum of the Index, as of the Rate Adjustment
Date applicable to such Due Date, and the Gross Margin, rounded as set forth in
such Mortgage Note, subject to the Periodic Cap and the Lifetime Cap applicable
to such Mortgage Loan at any time during the life of such Mortgage Loan.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated June 24, 2003, between the Bank of America, 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 X-0, Xxxxxxx X-0 and Exhibit D-3, setting forth the following
information with respect to each Mortgage Loan: (i) the Mortgage Loan
identifying number; (ii) a code indicating whether the Mortgaged Property is
owner-occupied; (iii) the property type for each Mortgaged Property; (iv) the
original months to maturity or the remaining months to maturity from the Cut-Off
Date; (v) the Loan-to-Value Ratio at origination; (vi) the Mortgage Interest
Rate as of the Cut-Off Date; (vii) the date on which the first Monthly Payment
was due on the Mortgage Loan, and, if such date is not the Due Date currently in
effect, such Due Date; (viii) the stated maturity date; (ix) the amount of the
Monthly Payment as of the Cut-Off Date; (x) the paid-through date; (xi) the
original principal amount of the Mortgage Loan; (xii) the principal balance of
the Mortgage Loan as of the close of business on the Cut-Off Date, after
application of payments of principal due on or before the Cut-Off Date, whether
or not collected, and after deduction of any payments collected of scheduled
principal due after the Cut-Off Date; (xiii) a code indicating the purpose of
the Mortgage Loan; (xiv) a code indicating the documentation style; (xv) the
Appraised Value; (xvi) the first Rate Adjustment Date; (xvii) the Rate Ceiling;
(xviii) the Periodic Cap; (xix) the Gross Margin; (xx) whether such Mortgage
Loan has an option to convert from an adjustable rate of interest to a fixed
rate of interest; and (xxi) the Closing Date. 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 (i) the Servicing Fee Rate, (ii) the Trustee Fee Rate, (iii) the
Pass-Through Rate for the Class SES Component of the Related Group and (iv) the
applicable WIO Rate.
Non-Ratio Strip 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 2.9690000% for each Group 1 Discount Mortgage Loan, 3.6389341% for each
Group 2 Discount Mortgage Loan and 3.9940000% for each Group 3 Discount Mortgage
Loan. As to any Mortgage Loan that is not a Discount Mortgage Loan , 100%.
Non-Ratio Strip Principal Amount: As to any Distribution Date
and Loan Group, the sum of the applicable Non-Ratio Strip Percentage of (a) the
principal portion of each Monthly Payment due on each Mortgage Loan in such Loan
Group on the related Due Date, (b) the Stated Principal Balance, as of the date
of repurchase, of each Mortgage Loan in such Loan Group that was repurchased by
the Depositor pursuant to this Agreement as of such Distribution Date, (c) any
Substitution Adjustment Amount in connection with a Defective Mortgage Loan in
such Loan Group received with respect to such Distribution Date, (d) any
Liquidation Proceeds allocable to recoveries of principal of Mortgage Loans in
such Loan Group that are not yet Liquidated Mortgage Loans received during the
calendar month preceding the month of such Distribution Date, (e) with respect
to each Mortgage Loan in such Loan Group that became a Liquidated Mortgage Loan
during the calendar month preceding the month of such Distribution Date, the
amount of Liquidation Proceeds 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 on the Mortgage Loans in
such Loan Group 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: (i) the Class 1-SES
Component and any date of determination, the Class 1-SES Notional Amount, (ii)
the Class 1-WIO Component and any date of determination, the Class 1-WIO
Notional Amount, (iii) the Class 2-SES Component and any date of determination,
the Class 2-SES Notional Amount, (iv) the Class 2-WIO Component and any date of
determination, the Class 2-WIO Notional Amount, (v) the Class 3-SES Component
and any date of determination, the Class 3-SES Notional Amount and (vi) the
Class 3-WIO Component and any date of determination, the Class 3-WIO Notional
Amount.
OCC: The Office of the Comptroller of the Currency.
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.
Opinion of Counsel: A written opinion of counsel acceptable to
the Trustee, who may be counsel for the Depositor or the Servicer, except that
any opinion of counsel relating to the qualification of the Trust Estate as two
separate REMICs or compliance with the REMIC Provisions must be an opinion of
Independent counsel.
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 1.45%
Class B-2 0.85%
Class B-3 0.50%
Class B-4 0.35%
Class B-5 0.20%
Class B-6 0.00%
Original Subordinate Certificate Balance: $29,338,024.00.
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, 2.04 or 2.09.
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 (other than the Class A-P, Class SES and Class WIO Certificates)
and each Class A-P, Class SES and Class WIO Component, the per annum rate set
forth or described 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 SES or Class 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.
Periodic Cap: For each Mortgage Loan, the applicable limit on
adjustment of the Mortgage Interest Rate for each Rate Adjustment Date specified
in the applicable Mortgage Note and designated as such in the Mortgage Loan
Schedule.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest
by the United States, FHLMC, FNMA or any agency or instrumentality
of the United States when such obligations are backed by the full
faith and credit of the United States; provided that such
obligations of FHLMC or FNMA shall be limited to senior debt
obligations and mortgage participation certificates other than
investments in mortgage-backed or mortgage participation securities
with yields evidencing extreme sensitivity to the rate of principal
payments on the underlying mortgages, which shall not constitute
Permitted Investments hereunder;
(ii) repurchase agreements on obligations specified in clause
(i) maturing not more than one month from the date of acquisition
thereof with a corporation incorporated under the laws of the United
States or any state thereof rated not lower than "A-1" by S&P and
"F-1" by Fitch;
(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 "F-1" by Fitch;
(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 "F-1" by Fitch;
(v) investments in money market funds (including funds of the
Trustee or its affiliates, or funds for which an affiliate of the
Trustee acts as advisor, as well as funds for which the Trustee and
its affiliates may receive compensation) rated either "AAAm" or
"AAAm G" by S&P and "AAA" by Fitch (if rated by Fitch) 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 two separate REMICs;
provided, however, that no instrument shall be a Permitted Investment if it
represents either (a) the right to receive only interest payments with respect
to the underlying debt instrument or (b) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest with respect to such instrument provide a yield to
maturity greater than 120% of the yield to maturity at par of such underlying
obligations.
Permitted Transferee: Any Person other than (i) the United
States, or any State or any political subdivision thereof, or any agency or
instrumentality of any of the foregoing, (ii) a foreign government,
international organization or any agency or instrumentality of either of the
foregoing, (iii) an organization which is exempt from tax imposed by Chapter 1
of the Code (including the tax imposed by Section 511 of the Code on unrelated
business taxable income) (except certain farmers' cooperatives described in Code
Section 521), (iv) rural electric and telephone cooperatives described in Code
Section 1381(a)(2)(C), (v) a Person with respect to whom the income on a
Residual Certificate is allocable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of such Person or
any other 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 1-A-R, Class 1-A-LR, Class
SES, Class WIO, Class B-4, Class B-5 and Class B-6 Certificates.
Plan: As defined in Section 6.02(e).
Pool Distribution Amount: As to any Distribution Date and Loan
Group, the excess of (a) the sum of (i) the aggregate of (A) the interest
portion of any Monthly Payment on a Mortgage Loan in such Loan Group (net of the
Servicing Fee) and the principal portion of any Monthly Payment on a Mortgage
Loan in such Loan Group due on the Due Date in the month in which such
Distribution Date occurs and which is received prior to the related
Determination Date and (B) all Periodic Advances and payments of Servicer
Compensating Interest made by the Servicer in respect of such Loan Group and
Distribution Date deposited to the Servicer Custodial Account pursuant to
Section 3.08(b)(vii); (ii) all Liquidation Proceeds received on the Mortgage
Loans in such Loan Group during the preceding calendar month and deposited to
the Servicer Custodial Account pursuant to Section 3.08(b)(iii); (iii) all
Principal Prepayments received on the Mortgage Loans in such Loan Group 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 in such Loan Group, 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 such Loan Group and (vi) any Reimbursement Amount required
to be included pursuant to Section 5.02(a) 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) in respect of such Loan Group and (ii)
amounts permitted to be withdrawn from the Certificate Account pursuant to
clauses (i) and (ii) of Section 3.11(b) in respect of such Loan Group.
Pool Stated Principal Balance: As to any Distribution Date and
Loan Group, the aggregate Stated Principal Balances of all Mortgage Loans in
such Loan Group that were Outstanding Mortgage Loans immediately following the
Due Date in the month preceding the month in which such Distribution Date
occurs.
Pool Stated Principal Balance (Non-Ratio Strip Portion): As to
any Distribution Date and Loan Group, the sum of the product, for each Mortgage
Loan of such Loan Group that was an Outstanding Mortgage Loan immediately
following the Due Date in the month preceding the month in which such
Distribution Date occurs, of the Non-Ratio Strip Percentage of such Mortgage
Loan multiplied by its Stated Principal Balance.
Premium Mortgage Loan: Any Group 1 Premium Mortgage Loan,
Group 2 Premium Mortgage Loan or Group 3 Premium Mortgage Loan.
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 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-P Certificates are Principal-Only Certificates until the June 2006
Distribution Date.
Principal Prepayment: Any payment or other recovery of
principal on a Mortgage Loan (other than Liquidation Proceeds) which is received
in advance of its scheduled Due Date and is not accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment of the
entire principal balance of a Mortgage Loan.
Private Certificates: The Class SES, Class WIO, 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 Amounts allocable to such Class, equal to the
product of the Subordinate Principal Distribution Amounts for such Distribution
Date and a fraction, the numerator of which is the related Class Certificate
Balance thereof and the denominator of which is the aggregate Class Certificate
Balance of the Subordinate Certificates that are not Restricted Classes. The Pro
Rata Share of a Restricted Class shall be 0%. The Pro Rata Share of a Class of
Subordinate Certificates may be computed for each of clause (i) and clause (ii)
of the definition of "Subordinate Principal Distribution Amount" in the event
the Restricted Classes differ with respect to each clause.
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.
Rate Adjustment Date: As to each Mortgage Loan, the Due Date
on which date an adjustment to the Mortgage Interest Rate of such Mortgage Loan
becomes effective under the related Mortgage Note, which Due Date is the date
set forth in the Mortgage Loan Schedule as the first Rate Adjustment Date and
each subsequent anniversary thereof.
Rate Ceiling: The maximum per annum Mortgage Interest Rate
permitted under the related Mortgage Note.
Rating Agency: Each of S&P and Fitch. 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. References herein to a given rating or rating category of
a Rating Agency shall mean such rating category without giving effect to any
modifiers.
Ratio Strip Deferred Amount: As to any Distribution Date and
each Class A-P Component prior to the Senior Credit Support Depletion Date, the
aggregate of the applicable Ratio Strip Percentage of each Realized Loss on the
Mortgage Loans in the Related Loan Group to be allocated to the Class A-P
Component of the Related Group on such Distribution Date or previously allocated
to such Class A-P Component and not yet paid with respect to such Class A-P
Component pursuant to Section 5.02(a)(iv) and any amounts (without duplication)
by which the Component Balance of such Class A-P Component is reduced as a
result of Section 5.03(b).
Ratio Strip Percentage: As to any Discount Mortgage Loan, 100%
minus the Non-Ratio Strip Percentage for such Mortgage Loan. As to any Mortgage
Loan that is not a Discount Mortgage Loan, 0%.
Ratio Strip Principal Amount: As to any Distribution Date and
Loan Group, the sum of the applicable Ratio Strip Percentage of (a) the
principal portion of each Monthly Payment due on each Mortgage Loan in such Loan
Group on the related Due Date, (b) the Stated Principal Balance, as of the date
of repurchase, of each Mortgage Loan in such Loan Group that was repurchased by
the Depositor pursuant to this Agreement as of such Distribution Date, (c) any
Substitution Adjustment Amount in connection with any Defective Mortgage Loan in
such Loan Group received with respect to such Distribution Date, (d) any
Liquidation Proceeds allocable to recoveries of principal of Mortgage Loans in
such Loan Group that are not yet Liquidated Mortgage Loans received during the
calendar month preceding the month of such Distribution Date, (e) with respect
to each Mortgage Loan in such Loan Group that became a Liquidated Mortgage Loan
during the calendar month preceding the month of such Distribution Date, the
amount of Liquidation Proceeds allocable to principal received with respect to
such Mortgage Loan during the calendar month preceding the month of such
Distribution Date with respect to such Mortgage Loan and (f) all Principal
Prepayments received on the Mortgage Loans in such Loan Group received during
the calendar month preceding the month of such Distribution Date.
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 2.04.
Related Group: For Loan Group 1, Group 1, for Loan Group 2,
Group 2 and for Loan Group 3, Group 3.
Related Loan Group: For Group 1, the Class 1-A-P Component,
the Class 1-SES Component and the Class 1-WIO Component, Loan Group 1, for Group
2, the Class 2-A-P Component, the Class 2-SES Component and the Class 2-WIO
Component, Loan Group 2 and for Group 3, the Class 3-A-P Component, the Class
3-SES Component and the Class 3-WIO Component, Loan Group 3.
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.
REMIC Certificate Maturity Date: The "latest possible maturity
date" of the Regular Certificates and the Components 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 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 Section 2.02 or 2.04 and as to any Converted
Mortgage Loan repurchased on any date pursuant to Section 2.09, 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 Certificates: The Class 1-A-R and Class 1-A-LR
Certificates.
Responsible Officer: When used with respect to the Trustee,
any officer of the Corporate Trust Department of the Trustee, including any
Senior Vice President, any Vice President, any Assistant Vice President, any
Assistant Secretary, any Trust Officer or Assistant Trust Officer, or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and having responsibility for
the administration of this Agreement.
Restricted Classes: As defined in Section 5.02(d).
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc., or any successor thereto.
Seller: Bank of America, a national banking association, or
its successor in interest, as seller of the Mortgage Loans under the Mortgage
Loan Purchase Agreement.
Senior Certificates: The Class A, Class SES and Class WIO
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 and
Loan Group, the percentage, carried six places rounded up, obtained by dividing
the aggregate Class Certificate Balance of the Class A Certificates of the
Related Group immediately prior to such Distribution Date by the Pool Stated
Principal Balance (Non-Ratio Strip Portion) of such Loan Group immediately prior
to such Distribution Date.
Senior Prepayment Percentage: For any Distribution Date and
Loan Group during the seven years beginning on the first Distribution Date,
100%. The Senior Prepayment Percentage for any Distribution Date and Loan Group
occurring on or after the seventh year anniversary of the first Distribution
Date will, except as provided herein, be as follows: for any Distribution Date
in the first year thereafter, the Senior Percentage for such Loan Group plus 70%
of the Subordinate Percentage for such Loan Group for such Distribution Date;
for any Distribution Date in the second year thereafter, the Senior Percentage
for such Loan Group plus 60% of the Subordinate Percentage for such Loan Group
for such Distribution Date; for any Distribution Date in the third year
thereafter, the Senior Percentage for such Loan Group plus 40% of the
Subordinate Percentage for such Loan Group for such Distribution Date; for any
Distribution Date in the fourth year thereafter, the Senior Percentage for such
Loan Group plus 20% of the Subordinate Percentage for such Loan Group for such
Distribution Date; and for any Distribution Date in the fifth or later years
thereafter, the Senior Percentage for such Loan Group for such Distribution
Date, unless (i) on any of the foregoing Distribution Dates the Total Senior
Percentage exceeds the initial Total Senior Percentage, in which case the Senior
Prepayment Percentage for Loan Group 1, Loan Group 2 and Loan Group 3 for such
Distribution Date will once again equal 100%, (ii) on any Distribution Date
before the Distribution Date occurring in July 2006, the Aggregate Subordinate
Percentage for such Distribution Date is greater than or equal to twice the
initial Aggregate Subordinate Percentage, in which case the Senior Prepayment
Percentage for Loan Group 1 for such Distribution Date will equal the Senior
Percentage for Loan Group 1 plus 50% of the Subordinate Percentage for Loan
Group 1, the Senior Prepayment Percentage for Loan Group 2 for such Distribution
Date will equal the Senior Percentage for Loan Group 2 plus 50% of the
Subordinate Percentage for Loan Group 2 and the Senior Prepayment Percentage for
Loan Group 3 for such Distribution Date will equal the Senior Percentage for
Loan Group 3 plus 50% of the Subordinate Percentage for Loan Group 3 or (iii) on
any Distribution Date occurring after the Distribution Date in July 2006, the
Aggregate Subordinate Percentage for such Distribution Date is greater than or
equal to twice the initial Aggregate Subordinate Percentage, in which case the
Senior Prepayment Percentage for Loan Group 1 for such Distribution Date will
equal the Senior Percentage for Loan Group 1, the Senior Prepayment Percentage
for Loan Group 2 for such Distribution Date will equal the Senior Percentage for
Loan Group 2 and the Senior Prepayment Percentage for Loan Group 3 for such
Distribution Date will equal the Senior Percentage for Loan Group 3.
Notwithstanding the foregoing, no decrease in the share of the applicable
Subordinate Percentage (for calculating the applicable Senior Prepayment
Percentage for any Loan Group) will occur and the Senior Prepayment Percentage
for all Loan Groups will be calculated without regard to clause (ii) or (iii) in
the preceding sentence unless both of the Senior Step Down Conditions are
satisfied.
Senior Principal Distribution Amount: As to any Distribution
Date and Loan Group, the sum of (i) the Senior Percentage for such Loan Group of
the applicable Non-Ratio Strip Percentage of all amounts described in clauses
(a) through (d) of the definition of "Non-Ratio Strip Principal Amount" for such
Distribution Date and Loan Group and (ii) the Senior Prepayment Percentage for
such Loan Group of the applicable Non-Ratio Strip Percentage of the amounts
described in clauses (e) and (f) of the definition of "Non-Ratio Strip Principal
Amount" for such Distribution Date and Loan Group.
Senior Step Down Conditions: As of any Distribution Date as to
which any decrease in the Senior Prepayment Percentage for any Loan Group
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
--------------------------- -------------------
July 2003 through June 2006 20%
July 2006 through June 2011 30%
July 2011 through June 2012 35%
July 2012 through June 2013 40%
July 2013 through June 2014 45%
July 2014 and thereafter 50%
Servicer: Bank of America, a national banking association, or
its successor in interest, 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 Business Day immediately preceding such Distribution
Date.
Servicer Compensating Interest: With respect to each
Distribution Date, the least of (a) the Servicing Compensation for such
Distribution Date (before giving effect to any reduction pursuant to Section
3.17), (b) the Prepayment Interest Shortfall for such Distribution Date and (c)
one-twelfth of 0.25% of the Pool Stated Principal Balances of the Loan Groups.
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. 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, 0.050%
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 Trustee by the
Servicer, as such list may from time to time be amended.
Servicing Transfer Costs: All reasonable costs and expenses
incurred by the Trustee 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
Trustee to correct any errors or insufficiencies in the servicing data or
otherwise to enable the Trustee to service the Mortgage Loans properly and
effectively.
Similar Law: As defined in Section 6.02(e).
Stated Principal Balance: As to any Mortgage Loan and 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 Balance Ratio: As of any date of determination,
the ratio among the principal balances of the Class 1-LS Interest, the Class
2-LS Interest and the Class 3-LS Interest, equal to the ratio among the Group
Subordinate Amount of Loan Group 1, the Group Subordinate Amount of Loan Group 2
and the Group Subordinate Amount of Loan Group 3.
Subordinate Certificates: The Class B Certificates.
Subordinate Percentage: As of any Distribution Date and Loan
Group, 100% minus the Senior Percentage for such Loan Group for such
Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date
and Loan Group, 100% minus the Senior Prepayment Percentage for such Loan Group
for such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and Loan Group, an amount equal to the sum of (i) the
Subordinate Percentage for such Loan Group of the applicable Non-Ratio Strip
Percentage of all amounts described in clauses (a) through (d) of the definition
of "Non-Ratio Strip Principal Amount" for such Distribution Date and Loan Group
and (ii) the Subordinate Prepayment Percentage of the applicable Non-Ratio Strip
Percentage of the amounts described in clauses (e) and (f) of the definition of
"Non-Ratio Strip Principal Amount" for such Distribution Date and Loan Group.
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 Gross Margin equal to that of the Defective Mortgage
Loan; (v) have a Periodic Cap and Rate Ceiling equal to that of the Defective
Mortgage Loan; (vi) have the same Index and frequency of mortgage interest rate
adjustment as the Deleted Mortgage Loan; (vii) have a remaining term to maturity
not greater than (and not more than one year less than) that of the Defective
Mortgage Loan; and (viii) comply with each Mortgage Loan representation and
warranty set forth in this Agreement relating to the Defective Mortgage Loan.
More than one Substitute Mortgage Loan may be substituted for a Defective
Mortgage Loan if such Substitute Mortgage Loans meet the foregoing attributes in
the aggregate.
Substitution Adjustment Amount: As defined in Section 2.02.
Supplemental Servicing Fee: With respect to any Distribution
Date and Loan Group, the amount of the fee payable to any successor Servicer in
addition to the aggregate Servicing Compensation for such Loan Group, which
shall, for such Distribution Date, be equal to the sum for each Mortgage Loan in
such Loan Group of one-twelfth of the product of a per annum rate agreed to by
the Trustee and the successor Servicer (but not in excess of 0.325% per annum
with respect to Loan Group 1 and 0.200% per annum with respect to Loan Group 2
and Loan Group 3) and the Stated Principal Balance of such Mortgage Loan,
computed on the basis of the same Stated Principal Balance and period respecting
which any related interest payment on a Mortgage Loan is computed.
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.
Total 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 Class A Certificates (other than the
Class A-P Certificates) immediately prior to such Distribution Date by the
aggregate Pool Stated Principal Balance (Non-Ratio Strip Portion) of all Loan
Groups immediately prior to such Distribution Date.
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.
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 Insurance Policies, 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: Xxxxx Fargo Bank Minnesota, National Association, and
its successors-in-interest and, if a successor trustee is appointed hereunder,
such successor, as trustee.
Trustee Fee: As to any Distribution Date and Loan Group, an
amount equal to one-twelfth of the Trustee Fee Rate multiplied by the aggregate
Stated Principal Balance of the Mortgage Loans in the Related Loan Group
immediately following the Due Date in the month preceding the month in which
such Distribution Date occurs.
Trustee Fee Rate: With respect to each Mortgage Loan, 0.002%
per annum.
Uncertificated Lower-Tier Interest: A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and is
entitled to monthly distributions as provided in Section 5.02(a) hereof. Any of
the Class 1-L Interest, Class 1-LS Interest, Class 1-LP Interest, Class 1-LSES
Interest, Class 1-LWIO Interest, Class 2-L Interest, Class 2-LS Interest, Class
2-LP Interest, Class 2-LSES Interest, Class 2-LWIO Interest, Class 3-L Interest,
Class 3-LS Interest, Class 3-LP Interest, Class 3-LSES Interest and Class 3-LWIO
Interest are Uncertificated Lower-Tier Interests.
Underwriting Guidelines: The underwriting guidelines of Bank
of America.
Upper-Tier Certificate: Any one of the Senior Certificates
(other than the Class 1-A-LR Certificate) and the Class B Certificates.
Upper-Tier Certificate Sub-Account: The sub-account of the
Certificate Account designated by the Trustee pursuant to Section 3.08(f).
Upper-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Uncertificated Lower-Tier Interests and such
amounts as shall from time to time be deemed held in the Upper-Tier Certificate
Sub-Account.
U.S. Person: A citizen or resident of the United States, a
corporation or partnership (unless, in the case of a partnership, Treasury
Regulations are adopted that provide otherwise) created or organized in or under
the laws of the United States, any state thereof or the District of Columbia,
including an entity treated as a corporation or partnership for federal income
tax purposes, an estate whose income is subject to United States federal income
tax regardless of its source, or a trust if a court within the United States is
able to exercise primary supervision over the administration of such trust, and
one or more such U.S. Persons have the authority to control all substantial
decisions of such trust (or, to the extent provided in applicable Treasury
Regulations, certain trusts in existence on August 20, 1996 which are eligible
to elect to be treated as U.S. Persons).
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Holders of
the Residual Certificates, (b) 1% of the all Voting Rights shall be allocated to
the Holders of the Class SES and 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.
WIO Rate: As to any Mortgage Loan and Distribution Date, such
Mortgage Loan's Mortgage Interest Rate thereon as of the Cut-Off Date reduced by
(i) the Servicing Fee Rate, (ii) the Trustee Fee Rate, (iii) the Pass-Through
Rate for the Class SES Component of the Related Group and (iv) 2.9690000% for
Loan Group 1, 3.6389341% for Loan Group 2 and 3.9940000% for Loan Group 3.
Notwithstanding the above, on and after the Distribution Date in the month
following the month of the first Rate Adjustment Date for any Premium Mortgage
Loan, the WIO Rate for such Premium Mortgage Loan will be zero.
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). 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
Xxxxx Fargo Bank Minnesota, National Association, as trustee for the
holders of the Banc of America Mortgage Securities, Inc. Mortgage
Pass-Through Certificates, Series 2003-F, 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 "Xxxxx Fargo Bank Minnesota,
National Association, as trustee for the holders of the Banc of
America Mortgage Securities, Inc. Mortgage Pass-Through
Certificates, Series 2003-F" (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 Trustee 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 an unqualified Opinion of Counsel reasonably acceptable
to the Trustee to the effect that recordation of such assignment is not
necessary under applicable state law to preserve the Trustee's interest in the
related Mortgage Loan against the claim of any subsequent transferee of such
Mortgage Loan or any successor to, or creditor of, the Depositor or the
originator of such Mortgage Loan or (ii) the recordation of an Assignment of
Mortgage in such state is not required by 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, 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, the
Trustee shall promptly so notify the Servicer and the Depositor, or shall cause
the Custodian to promptly so notify the Servicer and the Depositor. 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. The Depositor hereby covenants and agrees that it will promptly
correct or cure such defect within 90 days from the date it was so notified of
such defect and, if the Depositor does not correct or cure such defect within
such period, the Depositor will either (a) substitute for the related Mortgage
Loan a Substitute Mortgage Loan, which substitution shall be accomplished in the
manner and subject to the conditions set forth below or (b) purchase such
Mortgage Loan from the Trustee 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 shall 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.
With respect to each Substitute Mortgage Loan the Depositor
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 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 Section 2.04. Upon any such
substitution and the deposit to the Servicer Custodial 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 Depositor substitutes one or more
Substitute Mortgage Loans for one or more Defective Mortgage Loans, the amount
(if any) by which the aggregate principal balance of all such Substitute
Mortgage Loans in a Loan Group as of the date of substitution is less than the
aggregate Stated Principal Balance of all such Defective Mortgage Loans in such
Loan Group (after application of the principal portion of the Monthly Payments
due in the month of substitution) (the "Substitution Adjustment Amount" for such
Loan Group) plus an amount equal to the aggregate of any unreimbursed Advances
with respect to such Defective Mortgage Loans shall be 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 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.
It is understood and agreed that the obligation of the
Depositor to substitute for or to purchase any Mortgage Loan which does not meet
the requirements of Section 2.01 shall constitute the sole remedy respecting
such defect available to the Trustee and any Certificateholder against the
Depositor.
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 and the Trustee, as of the Closing Date:
(i) The Servicer is a national banking association duly
organized, validly existing, and in good standing under the federal
laws of the United States of America and has all licenses necessary
to carry on its business as now being conducted and is licensed,
qualified and in good standing in each 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 charter 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) The information set forth in the Mortgage Loan Schedule is
true and correct in all material respects.
(ii) There are no delinquent taxes, ground rents, governmental
assessments, insurance premiums, leasehold payments, including
assessments payable in future installments or other outstanding
charges affecting the lien priority of the related Mortgaged
Property.
(iii) The terms of the Mortgage Note and the Mortgage have not
been impaired, waived, altered or modified in any respect, except by
written instruments, recorded in the applicable public recording
office if necessary to maintain the lien priority of the Mortgage,
and which have been delivered to the Trustee; the substance of any
such waiver, alteration or modification has been approved by the
insurer under the Primary Insurance Policy, if any, the title
insurer, to the extent required by the related policy, and is
reflected on the Mortgage Loan Schedule. No instrument of waiver,
alteration or modification has been executed, and no Mortgagor has
been released, in whole or in part, except in connection with an
assumption agreement approved by the insurer under the Primary
Insurance Policy, if any, the title insurer, to the extent required
by the policy, and which assumption agreement has been delivered to
the Trustee.
(iv) The Mortgage Note and the Mortgage are not subject to any
right of rescission, set-off, counterclaim or defense, including the
defense of usury, nor will the operation of any of the terms of the
Mortgage Note and the Mortgage, or the exercise of any right
thereunder, render either the Mortgage Note or the Mortgage
unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense
of usury and no such right of rescission, set-off, counterclaim or
defense has been asserted with respect thereto.
(v) All buildings upon the Mortgaged Property are insured by
an insurer generally acceptable to prudent mortgage lending
institutions against loss by fire, hazards of extended coverage and
such other hazards as are customary in the area the Mortgaged
Property is located, pursuant to insurance policies conforming to
the requirements of Customary Servicing Procedures and this
Agreement. All such insurance policies contain a standard mortgagee
clause naming the originator of the Mortgage Loan, its successors
and assigns as mortgagee and all premiums thereon have been paid. If
the Mortgaged Property is in an area identified on a flood hazard
map or flood insurance rate map issued by the Federal Emergency
Management Agency as having special flood hazards (and such flood
insurance has been made available), a flood insurance policy meeting
the requirements of the current guidelines of the Federal Insurance
Administration is in effect which policy conforms to the
requirements of FNMA or FHLMC. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor's cost
and expense, and on the Mortgagor's failure to do so, authorizes the
holder of the Mortgage to maintain such insurance at Mortgagor's
cost and expense and to seek reimbursement therefor from the
Mortgagor.
(vi) Any and all requirements of any federal, state or local
law including, without limitation, usury, truth in lending, real
estate settlement procedures, consumer credit protections, all
applicable predatory and abusive lending laws, equal credit
opportunity or disclosure laws applicable to the origination and
servicing of Mortgage Loan have been complied with.
(vii) The Mortgage has not been satisfied, canceled,
subordinated or rescinded, in whole or in part (other than as to
Principal Prepayments in full which may have been received prior to
the Closing Date), and the Mortgaged Property has not been released
from the lien of the Mortgage, in whole or in part, nor has any
instrument been executed that would effect any such satisfaction,
cancellation, subordination, rescission or release.
(viii) The Mortgage is a valid, existing and enforceable first
lien on the Mortgaged Property, including all improvements on the
Mortgaged Property subject only to (A) the lien of current real
property taxes and assessments not yet due and payable, (B)
covenants, conditions and restrictions, rights of way, easements and
other matters of the public record as of the date of recording being
acceptable to mortgage lending institutions generally and
specifically referred to in the lender's title insurance policy
delivered to the originator of the Mortgage Loan and which do not
adversely affect the Appraised Value of the Mortgaged Property, (C)
if the Mortgaged Property consists of Co-op Shares, any lien for
amounts due to the cooperative housing corporation for unpaid
assessments or charges or any lien of any assignment of rents or
maintenance expenses secured by the real property owned by the
cooperative housing corporation, and (D) other matters to which like
properties are commonly subject which do not materially interfere
with the benefits of the security intended to be provided by the
Mortgage or the use, enjoyment, value or marketability of the
related Mortgaged Property. Any security agreement, chattel mortgage
or equivalent document related to and delivered in connection with
the Mortgage Loan establishes and creates a valid, existing and
enforceable first lien and first priority security interest on the
property described therein and the Depositor has the full right to
sell and assign the same to the Trustee.
(ix) The Mortgage Note and the related Mortgage are genuine
and each is the legal, valid and binding obligation of the maker
thereof, enforceable in accordance with its terms 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.
(x) All parties to the Mortgage Note and the Mortgage had
legal capacity to enter into the Mortgage Loan and to execute and
deliver the Mortgage Note and the Mortgage, and the Mortgage Note
and the Mortgage have been duly and properly executed by such
parties.
(xi) The proceeds of the Mortgage Loan have been fully
disbursed to or for the account of the Mortgagor and there is no
obligation for the Mortgagee to advance additional funds thereunder
and any and all requirements as to completion of any on-site or
off-site improvements and as to disbursements of any escrow funds
therefor have been complied with. All costs fees and expenses
incurred in making or closing the Mortgage Loan and the recording of
the Mortgage have been paid, and the Mortgagor is not entitled to
any refund of any amounts paid or due to the Mortgagee pursuant to
the Mortgage Note or Mortgage.
(xii) To the best of the Depositor's knowledge, all parties
which have had any interest in the Mortgage Loan, whether as
mortgagee, assignee, pledgee or otherwise, are (or, during the
period in which they held and disposed of such interest, were) in
compliance with any and all applicable "doing business" and
licensing requirements of the laws of the state wherein the
Mortgaged Property is located.
(xiii) The Mortgage Loan is covered by an ALTA lender's title
insurance policy, acceptable to FNMA or FHLMC, issued by a title
insurer acceptable to FNMA or FHLMC and qualified to do business in
the jurisdiction where the Mortgaged Property is located, insuring
(subject to the exceptions contained in (viii)(A) and (B) above) the
Seller, its successors and assigns as to the first priority lien of
the Mortgage in the original principal amount of the Mortgage Loan.
The Depositor is the sole insured of such lender's title insurance
policy, and such lender's title insurance policy is in full force
and effect and will be in full force and effect upon the
consummation of the transactions contemplated by this Agreement. No
claims have been made under such lender's title insurance policy,
and the Depositor has not done, by act or omission, anything which
would impair the coverage of such lender's title insurance policy.
(xiv) There is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note and no
event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default,
breach, violation or event of acceleration, and the Seller has not
waived any default, breach, violation or event of acceleration.
(xv) As of the date of origination of the Mortgage Loan, there
had been no mechanics' or similar liens or claims filed for work,
labor or material (and no rights are outstanding that under law
could give rise to such lien) affecting the relating Mortgaged
Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage.
(xvi) All improvements which were considered in determining
the Appraised Value of the related Mortgaged Property lay wholly
within the boundaries and building restriction lines of the
Mortgaged Property, and no improvements on adjoining properties
encroach upon the Mortgaged Property.
(xvii) The Mortgage Loan was originated by a commercial bank
or similar banking institution which is supervised and examined by a
federal or state authority, or by a mortgagee approved by the
Secretary of HUD.
(xviii) Principal payments on the Mortgage Loan commenced no
more than sixty days after the proceeds of the Mortgaged Loan were
disbursed. The Mortgage Loans are 10 to 30-year adjustable rate
mortgage loans having an original term to maturity of not more than
30 years, with interest payable in arrears on the first day of the
month. Each Mortgage Note requires a monthly payment which is
sufficient to fully amortize the original principal balance over the
original term thereof and to pay interest at the related Mortgage
Interest Rate. The Mortgage Note does not permit negative
amortization.
(xix) There is no proceeding pending or, to the Depositor's
knowledge, threatened for the total or partial condemnation of the
Mortgaged Property and such property is in good repair and is
undamaged by waste, fire, earthquake or earth movement, windstorm,
flood, tornado or other casualty, so as to affect adversely the
value of the Mortgaged Property as security for the Mortgage Loan or
the use for which the premises were intended.
(xx) The Mortgage and related Mortgage Note contain customary
and enforceable provisions such as to render the rights and remedies
of the holder thereof adequate for the realization against the
Mortgaged Property of the benefits of the security provided thereby,
including (A) in the case of a Mortgage designated as a deed of
trust, by trustee's sale, and (B) otherwise by judicial foreclosure.
To the best of the Depositor's knowledge, following the date of
origination of the Mortgage Loan, the Mortgaged Property has not
been subject to any bankruptcy proceeding or foreclosure proceeding
and the Mortgagor has not filed for protection under applicable
bankruptcy laws. There is no homestead or other exemption or right
available to the Mortgagor or any other person which would interfere
with the right to sell the Mortgaged Property at a trustee's sale or
the right to foreclose the Mortgage.
(xxi) The Mortgage Note and Mortgage are on forms acceptable
to FNMA or FHLMC.
(xxii) The Mortgage Note is not and has not been secured by
any collateral except the lien of the corresponding Mortgage on the
Mortgaged Property and the security interest of any applicable
security agreement or chattel mortgage referred to in (viii) above.
(xxiii) The Mortgage File contains an appraisal of the related
Mortgaged Property, in a form acceptable to FNMA or FHLMC and such
appraisal complies with the requirements of FIRREA, and was made and
signed, prior to the approval of the Mortgage Loan application, by a
Qualified Appraiser.
(xxiv) In the event the Mortgage constitutes a deed of trust,
a trustee, duly qualified under applicable law to serve as such, has
been properly designated and currently so serves, and no fees or
expenses are or will become payable by the Trustee to the trustee
under the deed of trust, except in connection with a trustee's sale
after default by the Mortgagor.
(xxv) No Mortgage Loan is a graduated payment mortgage loan,
no Mortgage Loan has a shared appreciation or other contingent
interest feature, and no more than 0.00%, 0.10% and 0.96% (by
Cut-Off Date Principal Balance) of the Group 1, Group 2 and Group 3
Mortgage Loans, respectively, are Buy-Down Mortgage Loans.
(xxvi) The Mortgagor has received all disclosure materials
required by applicable law with respect to the making of mortgage
loans of the same type as the Mortgage Loan and rescission materials
required by applicable law if the Mortgage Loan is a Refinance
Mortgage Loan.
(xxvii) Each Mortgage Loan with a Loan-to-Value Ratio at
origination in excess of 80% will be subject to a Primary Insurance
Policy, issued by an insurer acceptable to FNMA or FHLMC, which
insures that portion of the Mortgage Loan in excess of the portion
of the Appraised Value of the Mortgaged Property required by FNMA.
All provisions of such Primary Insurance Policy have been and are
being complied with, such policy is in full force and effect, and
all premiums due thereunder have been paid. Any Mortgage subject to
any such Primary Insurance Policy obligates the Mortgagor thereunder
to maintain such insurance and to pay all premiums and charges in
connection therewith at least until Loan-to-Value Ratio of such
Mortgage Loan is reduced to less than 80%. The Mortgage Interest
Rate for the Mortgage Loan does not include any such insurance
premium.
(xxviii) To the best of the Depositor's knowledge as of the
date of origination of the Mortgage Loan, (A) the Mortgaged Property
is lawfully occupied under applicable law, (B) all inspections,
licenses and certificates required to be made or issued with respect
to all occupied portions of the Mortgaged Property and, with respect
to the use and occupancy of the same, including but not limited to
certificates of occupancy, have been made or obtained from the
appropriate authorities and (C) no improvement located on or part of
the Mortgaged Property is in violation of any zoning law or
regulation.
(xxix) The Assignment of Mortgage (except with respect to any
Mortgage that has been recorded in the name of MERS or its designee)
is in recordable form and is acceptable for recording under the laws
of the jurisdiction in which the Mortgaged Property is located.
(xxx) All payments required to be made prior to the Cut-Off
Date for such Mortgage Loan under the terms of the Mortgage Note
have been made and no Mortgage Loan has been more than 30 days
delinquent more than once in the twelve month period immediately
prior to the Cut-Off Date.
(xxxi) With respect to each Mortgage Loan, the Depositor or
Servicer is in possession of a complete Mortgage File except for the
documents which have been delivered to the Trustee or which have
been submitted for recording and not yet returned.
(xxxii) 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.
(xxxiii) Any future advances made prior to the Cut-Off Date
have been consolidated with the outstanding principal amount secured
by the Mortgage, and the secured principal amount, as consolidated,
bears a single interest rate and single repayment term. The lien of
the Mortgage securing the consolidated principal amount is expressly
insured as having first lien priority by a title insurance policy,
an endorsement to the policy insuring the mortgagee's consolidated
interest or by other title evidence acceptable to FNMA and FHLMC.
The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan.
(xxxiv) The Mortgage Loan was underwritten in accordance with
the applicable Underwriting Guidelines in effect at the time of
origination with exceptions thereto exercised in a reasonable
manner.
(xxxv) If the Mortgage Loan is secured by a long-term
residential lease, (1) the lessor under the lease holds a fee simple
interest in the land; (2) the terms of such lease expressly permit
the mortgaging of the leasehold estate, the assignment of the lease
without the lessor's consent and the acquisition by the holder of
the Mortgage of the rights of the lessee upon foreclosure or
assignment in lieu of foreclosure or provide the holder of the
Mortgage with substantially similar protections; (3) the terms of
such lease do not (a) allow the termination thereof upon the
lessee's default without the holder of the Mortgage being entitled
to receive written notice of, and opportunity to cure, such default,
(b) allow the termination of the lease in the event of damage or
destruction as long as the Mortgage is in existence, (c) prohibit
the holder of the Mortgage from being insured (or receiving proceeds
of insurance) under the hazard insurance policy or policies relating
to the Mortgaged Property or (d) permit any increase in the rent
other than pre-established increases set forth in the lease; (4) the
original term of such lease in not less than 15 years; (5) the term
of such lease does not terminate earlier than five years after the
maturity date of the Mortgage Note; and (6) the Mortgaged Property
is located in a jurisdiction in which the use of leasehold estates
in transferring ownership in residential properties is a widely
accepted practice.
(xxxvi) The Mortgaged Property is located in the state
identified in the Mortgage Loan Schedule and consists of a parcel of
real property with a detached single family residence erected
thereon, or a two- to four-family dwelling, or an individual
condominium unit, or an individual unit in a planned unit
development, or, in the case of Mortgage Loans secured by Co-op
Shares, leases or occupancy agreements; provided, however, that any
condominium project or planned unit development generally conforms
with the applicable Underwriting Guidelines regarding such
dwellings, and no residence or dwelling is a mobile home or a
manufactured dwelling.
(xxxvii) The Depositor used no adverse selection procedures in
selecting the Mortgage Loan for inclusion in the Trust Estate.
(xxxviii) Each Mortgage Loan is a "qualified mortgage" within
Section 860G(a)(3) of the Code.
(xxxix) With respect to each Mortgage where a lost note
affidavit has been delivered to the Trustee in place of the related
Mortgage Note, the related Mortgage Note is no longer in existence.
(xl) No Mortgage Loan is a "high cost" loan as defined under
any federal, state or local law applicable to such Mortgage Loan at
the time of its origination.
Notwithstanding the foregoing, no representations or
warranties are made by the Depositor as to the environmental condition of any
Mortgaged Property; the absence, presence or effect of hazardous wastes or
hazardous substances on any Mortgaged Property; any casualty resulting from the
presence or effect of hazardous wastes or hazardous substances on, near or
emanating from any Mortgaged Property; the impact on Certificateholders of any
environmental condition or presence of any hazardous substance on or near any
Mortgaged Property; or the compliance of any Mortgaged Property with any
environmental laws, nor is any agent, Person or entity otherwise affiliated with
the Depositor authorized or able to make any such representation, warranty or
assumption of liability relative to any Mortgaged Property. In addition, no
representations or warranties are made by the Depositor with respect to the
absence or effect of fraud in the origination of any Mortgage Loan.
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.
Upon discovery by either the Depositor, the Servicer, the
Trustee or the Custodian that any of the representations and warranties set
forth in this Section 2.04 is not accurate (referred to herein as a "breach")
and that such breach materially and adversely affects the interests of the
Certificateholders in the related Mortgage Loan, the party discovering such
breach shall give prompt written notice to the other parties (any Custodian
being so obligated under a Custodial Agreement); 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. Within 90 days of its
discovery or its receipt of notice of any such breach, the Depositor shall cure
such breach in all material respects or shall either (i) repurchase the Mortgage
Loan or any property acquired in respect thereof from the Trustee at a price
equal to the Repurchase Price or (ii) if within two years of the Closing Date,
substitute for such Mortgage Loan in the manner described in Section 2.02;
provided that if the breach would cause the Mortgage Loan to be other than a
"qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such
repurchase or substitution must occur within 90 days from the date the breach
was discovered. In addition to the foregoing, if a breach of the representation
set forth in clause (vi) of this Section 2.04 occurs as a result of a violation
of an applicable predatory or abusive lending law, the Depositor shall reimburse
the Trust all costs or damages incurred by the Trust as a result of the
violation of such law (such amount, the "Reimbursement Amount"). The Repurchase
Price of any repurchase described in this paragraph, the Substitution Adjustment
Amount, if any, and any Reimbursement Amount shall be deposited in the
Certificate Account. It is understood and agreed that, except with respect to
the second preceding sentence, the obligation of the Depositor to repurchase or
substitute for any Mortgage Loan or Mortgaged Property as to which such a breach
has occurred and is continuing shall constitute the sole remedy respecting such
breach available to Certificateholders, or to the Trustee on behalf of
Certificateholders, and such obligation shall survive until termination of the
Trust hereunder.
Section 2.05 Designation of Interests in the REMICs. The
Depositor hereby designates the Classes of Class A Certificates (other than the
Class A-P, Class 1-A-R and Class 1-A-LR Certificates) and the Classes of Class B
Certificates and each Component as "regular interests" and the Class 1-A-R
Certificate as the single class of "residual interest" in the Upper-Tier REMIC
for the purposes of Code Sections 860G(a)(1) and 860G(a)(2), respectively. The
Depositor hereby further designates the Class 1-L Interest, Class 1-LP Interest,
Class 1-LS Interest, Class 1-LSES Interest, Class 1-LWIO Interest, Class 2-L
Interest, Class 2-LP Interest, Class 2-LS Interest, Class 2-LSES Interest, Class
2-LWIO Interest, Class 3-L Interest, Class 3-LP Interest, Class 3-LS Interest,
Class 3-LSES Interest and Class 3-LWIO Interest as classes of "regular
interests" and the Class 1-A-LR Certificate as the single class of "residual
interest" in the Lower-Tier REMIC for the purposes of Code Sections 860G(a)(1)
and 860G(a)(2), respectively.
Section 2.06 Designation of Start-up Day. The Closing Date is
hereby designated as the "start-up day" of each of the Upper-Tier REMIC and
Lower-Tier REMIC within the meaning of Section 860G(a)(9) of the Code.
Section 2.07 REMIC Certificate Maturity Date. Solely for
purposes of satisfying Section 1.860G-1(a)(4)(iii) of the Treasury Regulations,
the "latest possible maturity date" of the regular interests in the Upper-Tier
REMIC and Lower-Tier REMIC is July 25, 2033.
Section 2.08 Execution and Delivery of Certificates. The
Trustee (i) acknowledges the issuance of and hereby declares that it holds the
Uncertificated Lower-Tier Interests on behalf of the Upper-Tier REMIC and the
Certificateholders and (ii) has executed and delivered to or upon the order of
the Depositor, in exchange for the Mortgage Loans and Uncertificated Lower-Tier
Interests together with all other assets included in the definition of "Trust
Estate," receipt of which is hereby acknowledged, Certificates in authorized
denominations which, together with the Uncertificated Lower-Tier Interests,
evidence ownership of the entire Trust Estate.
Section 2.09 Repurchase of Converted Mortgage Loans. The
Depositor shall repurchase from the Trust any Converted Mortgage Loan prior to
the first Due Date for such Mortgage Loan following the Conversion Date. Any
such repurchase shall be at the Repurchase Price. The Repurchase Price for any
repurchased Converted Mortgage Loan shall be deposited by the Depositor in the
Certificate Account and, upon receipt by the Trustee of written notification of
any such deposit and a Request for Release signed by an officer of the
Depositor, the Trustee shall release to the Depositor the related Mortgage File
and shall execute and deliver such instruments of transfer or assignment
prepared by the Depositor, in each case without recourse, as shall be necessary
to vest in the Depositor legal and beneficial ownership of such Converted
Mortgage Loan.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 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 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 and the Trustee, is hereby authorized and
empowered by the Depositor and the Trustee, when the Servicer or any
Subservicer, as the case may be, believes it appropriate in its reasonable
judgment, to execute and deliver, on behalf of the Trustee, the Depositor, the
Certificateholders or any of them, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Mortgage Loans it services, and with
respect to the related Mortgaged Properties held for the benefit of the
Certificateholders. The Servicer shall prepare and deliver to the Depositor
and/or the Trustee such documents requiring execution and delivery by either or
both of them as are necessary or appropriate to enable the Servicer to service
and administer the Mortgage Loans it services to the extent that the Servicer is
not permitted to execute and deliver such documents pursuant to the preceding
sentence. Upon receipt of such documents, the Depositor and/or the Trustee, upon
the direction of the Servicer, shall promptly execute such documents and deliver
them to the Servicer.
In accordance with the standards of the preceding paragraph,
the Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the payment of taxes and assessments on the Mortgaged
Properties relating to the Mortgage Loans it services, which Servicing Advances
shall be reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.09, 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 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 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 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 Trustee, if the
Trustee has assumed the duties of the Servicer, or any successor Servicer, at
the Trustee's or successor Servicer's option, as applicable, without cost or
obligation to the assuming or terminating party or the Trust Estate, upon the
assumption by such party of the obligations of the Servicer pursuant to Section
8.05.
Any Subservicing Agreement, and any other transactions or
services relating to the Mortgage Loans involving a Subservicer, shall be deemed
to be between the Servicer and such Subservicer alone, and the Trustee and the
Certificateholders shall not be deemed parties thereto and shall have no claims
or rights of action against, rights, obligations, duties or liabilities to or
with respect to the Subservicer or its officers, directors or employees, except
as set forth in Section 3.01.
Section 3.03 Fidelity Bond; Errors and Omissions Insurance.
The Servicer shall maintain, at its own expense, a blanket fidelity bond and an
errors and omissions insurance policy, with broad coverage on all officers,
employees or other persons acting in any capacity requiring such persons to
handle funds, money, documents or papers relating to the Mortgage Loans it
services. These policies must insure the Servicer against losses resulting from
dishonest or fraudulent acts committed by the Servicer's personnel, any
employees of outside firms that provide data processing services for the
Servicer, and temporary contract employees or student interns. Such fidelity
bond shall also protect and insure the Servicer against losses in connection
with the release or satisfaction of a Mortgage Loan without having obtained
payment in full of the indebtedness secured thereby. No provision of this
Section 3.03 requiring such fidelity bond and errors and omissions insurance
shall diminish or relieve the Servicer from its duties and obligations as set
forth in this Agreement. The minimum coverage under any such bond and insurance
policy shall be at least equal to the corresponding amounts required by FNMA in
the FNMA Servicing Guide or by FHLMC in the FHLMC Sellers' & Servicers' Guide,
as amended or restated from time to time, or in an amount as may be permitted to
the Servicer by express waiver of FNMA or FHLMC.
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 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 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
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 Insurance Policy. If the insurer shall cease
to be an insurer acceptable to FNMA, the Servicer shall notify the Trustee in
writing, it being understood that the Servicer shall not have any responsibility
or liability for any failure to recover under the Primary Insurance Policy for
such reason. If the Servicer determines that recoveries under the Primary
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 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 Insurance Policy, if any,
of such assumption or substitution of liability in accordance with the terms of
such Primary 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 Insurance Policy. If such Primary Insurance Policy is terminated as a
result of such assumption or substitution of liability, the Servicer shall
obtain a replacement Primary 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 Insurance Policy in
a timely fashion in accordance with the terms of such Primary Insurance Policy
and, in this regard, to take such action as shall be necessary to permit
recovery under any Primary Insurance Policy respecting a defaulted Mortgage
Loan. Pursuant to Section 3.09(a), any amounts collected by the Servicer under
any Primary 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 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 Trustee nor the Depositor shall have
any responsibility or liability for any action or failure to act by the Servicer
nor shall the Trustee or the Depositor be obligated to supervise the performance
of the Servicer 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 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 Trustee to Act as Servicer. If the Servicer shall
for any reason no longer be the Servicer hereunder (including by reason of an
Event of Default), the Trustee shall within 90 days of such time, assume, if it
so elects, or shall appoint a successor Servicer to assume, all of the rights
and obligations of the Servicer hereunder arising thereafter (except that the
Trustee shall not be (a) liable for losses of the Servicer pursuant to Section
3.12 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 Trustee or the successor Servicer may elect to
succeed to any rights and obligations of the Servicer under each Subservicing
Agreement or may terminate each Subservicing Agreement. If it has elected to
assume the Subservicing Agreement, the Trustee or the successor Servicer shall
be deemed to have assumed all of the Servicer's interest therein and to have
replaced the Servicer as a party to any Subservicing Agreement entered into by
the Servicer as contemplated by Section 3.02 to the same extent as if the
Subservicing Agreement had been assigned to the assuming party except that the
Servicer shall not be relieved of any liability or obligations under any such
Subservicing Agreement.
The Servicer that is no longer the Servicer hereunder shall,
upon request of the Trustee, but at the expense of the 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 Trustee 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) all Repurchase Prices and all Substitution Adjustment
Amounts received by the Servicer;
(vii) Periodic Advances made by the Servicer pursuant to
Section 3.20 and any Servicer Compensating Interest;
(viii) any Buy-Down Funds required to be deposited pursuant to
Section 3.24;
(ix) all Ancillary Income with respect to the Mortgage Loans;
and
(x) 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 Trustee shall establish and maintain, on behalf of the
Certificateholders, the Certificate Account, which shall be deemed to consist of
four sub-accounts. The Trustee shall, promptly upon receipt, deposit in the
Certificate Account and retain therein the following:
(i) the aggregate amount remitted by the Servicer to the
Trustee pursuant to Section 3.11(a)(viii);
(ii) any amount paid by the Trustee 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 Trustee 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
Trustee 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 Trustee 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 Trustee 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 Trustee, 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
Trustee as additional 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 Trustee in the Certificate Account, as applicable.
(e) The Servicer shall give notice to the Trustee 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 Trustee shall give notice to 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 Trustee.
(f) The Trustee shall designate the Upper-Tier Certificate
Sub-Account as a sub-account of the Certificate Account. On each Distribution
Date (other than the Final Distribution Date, if such Final Distribution Date is
in connection with a purchase of the assets of the Trust Estate by the
Depositor), the Trustee shall, from funds available on deposit in the
Certificate Account, be deemed to deposit into the Upper-Tier Certificate
Sub-Account, the Lower-Tier Distribution Amount.
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 Mortgage
Securities, Inc. Mortgage Pass-Through Certificates, Series 2003-F 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 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 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 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, such right of reimbursement pursuant to this clause
(iii) being limited to amounts received on the Mortgage Loans in the
same Loan Group as the Mortgage Loan(s) in respect of which such
Nonrecoverable Advance was made;
(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, 2.04 or 2.09, 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 related Pool Distribution Amount (less, (a) at
the Servicer's option, but only for so long as Bank of America is
the Servicer and Bank of America or an affiliate is the sole Holder
of the Class SES Certificates, an amount up to 1/12th of 0.325% per
annum for Loan Group 1 and 0.200% per annum for Loan Group 2 and
Loan Group 3 of the Stated Principal Balance of the Mortgage Loans
in the related Loan Group on the Due Date in the month preceding the
month of such Distribution Date, which amount shall be withdrawn on
the related Distribution Date and remitted to the Holders of the
Class SES Certificates on behalf of the Trustee in respect of the
Component Interest Distribution Amounts of the Class SES Component
on such Distribution Date and (b) at the Servicer's option, but only
for so long as Bank of America is the Servicer and Bank of America
or an affiliate is the sole Holder of the Class WIO Certificates, an
amount up to the sum of the Component Interest Distribution Amounts
for the Class WIO Components for the related Distribution Date,
which amount shall be withdrawn on the related Distribution Date and
remitted to the Holders of the Class WIO Certificates on behalf of
the Trustee), any Ancillary Income (provided, however, if Bank of
America is the Servicer and Bank of America or an affiliate is the
sole Holder of the Class SES Certificates, such Ancillary Income, at
the Servicer's option, need not be remitted to the Trustee but shall
be withdrawn on the related Distribution Date and remitted to the
Holders of the Class SES Certificates on behalf of the Trustee), the
related Trustee Fee and any other amounts due to the Trustee under
this Agreement for such Distribution Date, to the extent on deposit,
and remit such amount in immediately available funds to the Trustee
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). The Servicer shall keep and maintain such separate accounting for
each Loan Group. Prior to making any withdrawal from the Servicer Custodial
Account pursuant to clause (iii), the Servicer shall deliver to the Trustee an
Officer's Certificate of a Servicing Officer indicating the amount of any
previous Advance determined by the Servicer to be a Nonrecoverable Advance and
identifying the related Mortgage Loan(s) and their respective portions of such
Nonrecoverable Advance.
Bank of America agrees to indemnify the Trustee for any loss,
liability or expense incurred by the Trustee as a result of Bank of America's
failure to (i) distribute to the Holders of the Class WIO Certificates on any
Distribution Date any amounts retained by Bank of America pursuant to clause
(viii)(b) above or (ii) to the extent Bank of America or an affiliate is no
longer the sole Holder of the Class WIO Certificates hereunder, remit to the
Trustee on any Remittance Date the amounts payable on the Class WIO Certificates
on the related Distribution Date.
(b) The Trustee shall be deemed to withdraw funds from the
applicable Certificate Account sub-accounts to deposit the Lower-Tier
Distribution Amount into the Upper-Tier Certificate Sub-Account and for
distributions to Certificateholders in the manner specified in this Agreement.
In addition, the Trustee may from time to time make withdrawals from the
Certificate Account for the following purposes:
(i) to pay to itself the Trustee Fee and any other amounts due
to the Trustee under this Agreement for the related Distribution
Date;
(ii) to pay to itself as additional 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 pursuant to Section 10.01.
(c) On each Distribution Date, funds on deposit in the
Certificate Account and deemed to be on deposit in the Upper-Tier Certificate
Sub-Account shall be used to make payments on the Regular Certificates, the
Class A-P Certificates, the Class SES Certificates, the Class WIO Certificates
and the Class 1-A-R Certificate as provided in Sections 5.01 and 5.02. The
Certificate Account shall be cleared and terminated upon termination of this
Agreement pursuant to Section 10.01.
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 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 Trustee for execution by it, the Servicer shall
deliver an Officer's Certificate signed by a Servicing Officer stating that the
requirements of this subsection have been met. The Servicer shall notify the
Trustee that any such substitution or assumption agreement has been completed by
forwarding to the Trustee (or at the direction of the Trustee, the Custodian)
the original of such substitution or assumption agreement, which in the case of
the original shall be added to the related Mortgage File and shall, for all
purposes, be considered a part of such Mortgage File to the same extent as all
other documents and instruments constituting a part thereof. Any fee collected
by the Servicer for entering into an assumption or substitution of liability
agreement may be retained by the Servicer as additional 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 Trustee for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. The
Trustee's name shall be placed on the title to such REO Property solely as the
Trustee hereunder and not in its individual capacity. The Servicer shall ensure
that the title to such REO Property references this Agreement and the Trustee's
capacity hereunder. 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 Trustee 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 Trustee.
If the Trust acquires any Mortgaged Property as described
above or otherwise in connection with a default or a default which is reasonably
foreseeable on a Mortgage Loan, the Servicer shall dispose of such Mortgaged
Property prior to the end of the third calendar year following the year of its
acquisition by the Trust (such period, the "REO Disposition Period") unless (A)
the Trustee shall have been supplied by the Servicer with an Opinion of Counsel
to the effect that the holding by the Trust of such Mortgaged Property
subsequent to the REO Disposition Period will not result in the imposition of
taxes on "prohibited transactions" (as defined in Section 860F of the Code) on
any of the Upper-Tier REMIC or the Lower-Tier REMIC or cause any REMIC to fail
to qualify as a REMIC at any time that any Certificates are outstanding, or (B)
the Trustee (at the Servicer's expense) or the Servicer shall have applied for,
prior to the expiration of the REO Disposition Period, an extension of the REO
Disposition Period in the manner contemplated by Section 856(e)(3) of the Code.
If such an Opinion of Counsel is provided or such an exemption is obtained, the
Trust may continue to hold such Mortgaged Property (subject to any conditions
contained in such Opinion of Counsel) for the applicable period. Notwithstanding
any other provision of this Agreement, no Mortgaged Property acquired by the
Trust shall be rented (or allowed to continue to be rented) or otherwise used
for the production of income by or on behalf of the Trust in such a manner or
pursuant to any terms that would (i) cause such Mortgaged Property to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or (ii) subject any REMIC to the imposition of any federal, state or
local income taxes on the income earned from such Mortgaged Property under
Section 860G(c) of the Code or otherwise, unless the Servicer has agreed to
indemnify and hold harmless the Trust with respect to the imposition of any such
taxes. The Servicer shall identify to the Trustee any Mortgaged Property
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 (i) 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 or (ii) any
Mortgage Loan in the Trust Estate which pursuant to Section 4(b) of the Mortgage
Loan Purchase Agreement the Seller requests the Depositor to repurchase and to
sell to the Seller to facilitate the exercise of the Seller's rights against the
originator or prior holder of such Mortgage Loan. 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 Trustee the notification required by Section 3.15
and the Trustee 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 will immediately notify the Trustee (or, at the
direction of the Trustee, the Custodian) by delivering, or causing to be
delivered, two copies (one of which will be returned to the Servicer with the
Mortgage File) of a Request for Release (which may be delivered in an electronic
format acceptable to the Trustee and the Servicer). Upon receipt of such
request, the Trustee or the Custodian, as applicable, shall within seven
Business Days release the related Mortgage File to the Servicer. The Trustee
shall at the Servicer's direction execute and deliver to the Servicer the
request for reconveyance, deed of reconveyance or release or satisfaction of
mortgage or such instrument releasing the lien of the Mortgage, in each case
provided by the Servicer, together with the Mortgage Note with written evidence
of cancellation thereon. If the Mortgage has been recorded in the name of MERS
or its designee, the Servicer shall take all necessary action to reflect the
release of the Mortgage on the records of MERS. Expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be chargeable
to the related Mortgagor. From time to time and as shall be appropriate for the
servicing or foreclosure of any Mortgage Loan, including for such purpose
collection under any policy of flood insurance, any fidelity bond or errors or
omissions policy, or for the purposes of effecting a partial release of any
Mortgaged Property from the lien of the Mortgage or the making of any
corrections to the Mortgage Note or the Mortgage or any of the other documents
included in the Mortgage File, the Trustee or the Custodian, as applicable,
shall, upon delivery to the Trustee (or, at the direction of the Trustee, the
Custodian) of a Request for Release signed by a Servicing Officer, release the
Mortgage File within seven Business Days to the Servicer. Subject to the further
limitations set forth below, the Servicer shall cause the Mortgage File so
released to be returned to the Trustee or the Custodian, as applicable, when the
need therefor by the Servicer no longer exists, unless the Mortgage Loan is
liquidated and the proceeds thereof are deposited in the Servicer Custodial
Account, in which case the Servicer shall deliver to the Trustee or the
Custodian, as applicable, a Request for Release, signed by a Servicing Officer.
The Trustee shall execute and deliver to the Servicer any
powers of attorney and other documents prepared by the Servicer that are
reasonably necessary or appropriate 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. Any successor Servicer shall also be entitled to the Supplemental
Servicing Fee.
Any additional Servicing Compensation shall be retained by the
Servicer to the extent not required to be deposited in the Servicer Custodial
Account pursuant to Section 3.08(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, the Servicing Compensation for
the Servicer relating to the Mortgage Loans for such Distribution Date shall be
reduced (but not below zero) by amount equal to the Servicer Compensating
Interest.
Section 3.18 Annual Statement as to Compliance. The Servicer
shall deliver to the Trustee and each Rating Agency on or before the 30th day
(or if not a Business Day, the immediately preceding Business Day) preceding the
latest day in each year on which an annual report on Form 10-K may be timely
filed with the Securities and Exchange Commission (without regard to any
extension), an Officer's Certificate stating, as to the signer thereof, that (a)
a review of the activities of the Servicer during the preceding calendar year
and of the performance of the Servicer under this Agreement has been made under
such officer's supervision, and (b) to the best of such officer's knowledge,
based on such review, the Servicer has fulfilled all its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof.
Section 3.19 Annual Independent Public Accountants' Servicing
Statement; Financial Statements. The Servicer shall, at its own expense, on or
before the 30th day (or if not a Business Day, the immediately preceding
Business Day) preceding the latest day in each year on which an annual report on
Form 10-K may be timely filed with the Securities and Exchange Commission
(without regard to any extension), cause a firm of independent public
accountants (who may also render other services to the Servicer or any affiliate
thereof) which is a member of the American Institute of Certified Public
Accountants to furnish a statement to the Trustee to the effect that such firm
has with respect to the Servicer's overall servicing operations, examined such
operations in accordance with the requirements of the Uniform Single Attestation
Program for Mortgage Bankers, stating such firm's conclusions relating thereto.
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 with respect to a Loan Group in the Servicer Custodial Account has
been used by the Servicer in discharge of its obligation to make any such
Periodic Advance on a Mortgage Loan in such Loan Group. Any funds so applied
shall be replaced by 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 Trustee of the amount of the
Periodic Advance to be made by the Servicer with respect to each Loan Group on
each Servicer Advance Date no later than the related Remittance Date.
The Servicer shall deliver to the Trustee on the related
Servicer Advance Date an Officer's Certificate of a Servicing Officer indicating
the amount of any proposed Periodic Advance determined by 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 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 Trustee an Opinion of Counsel to the effect
that such modification, waiver, forbearance or amendment would not affect the
REMIC status of any of the Upper-Tier REMIC or the Lower-Tier REMIC 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 Trustee, in writing, of any
modification, waiver, forbearance or amendment of any term of any Mortgage Loan
and the date thereof, and shall deliver to the Trustee (or, at the direction of
the Trustee, the Custodian) for deposit in the related Mortgage File, an
original counterpart of the agreement relating to such modification, waiver,
forbearance or amendment, promptly (and in any event within ten Business Days)
following the execution thereof; provided, however, that if any such
modification, waiver, forbearance or amendment is required by applicable law to
be recorded, the Servicer (i) shall deliver to the Trustee a copy thereof and
(ii) shall deliver to the Trustee 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 Trustee and the Servicer shall reasonably cooperate
with the Depositor in connection with the Trust's satisfying its reporting
requirements under the Exchange Act. Without limiting the generality of the
foregoing, the Trustee shall prepare on behalf of the Trust any monthly Current
Reports on Form 8-K (each, a "Monthly Form 8-K") and Annual Reports on Form 10-K
(each, a "Form 10-K") customary for similar securities as required by the
Exchange Act and the rules and regulations of the Securities and Exchange
Commission thereunder, and the Trustee shall sign and file (via the Securities
and Exchange Commission's Electronic Data Gathering and Retrieval System) such
Forms on behalf of the Trust. In the event the Depositor is signing the
Certification described in paragraph (b) of this Section 3.22, the Depositor
hereby grants to the Trustee a limited power of attorney to execute and file
each such Form 10-K on behalf of the Depositor. Such power of attorney shall
continue until either the earlier of (i) receipt by the Trustee from the
Depositor of written termination of such power of attorney and (ii) the
termination of the Trust. Notwithstanding the foregoing, in the event the
Securities and Exchange Commission does not accept a Certification signed by the
Depositor where the related Form 10-K is signed by the Trustee on behalf of the
Depositor, the Trustee shall prepare such Form 10-K to be signed by the
Depositor and the Depositor shall sign such Form 10-K.
(b) Each Monthly Form 8-K shall be filed by the Trustee within
15 days after each Distribution Date, including a copy of the monthly statement
to Certificateholders delivered pursuant to Section 5.04(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 Trustee shall file a Form 10-K, in substance as required by
applicable law or applicable Securities and Exchange Commission staff's
interpretations. Such Form 10-K shall include as exhibits the Servicer's annual
statement of compliance described under Section 3.18 and the accountant's report
described under Section 3.19, in each case, to the extent they have been timely
delivered to the Trustee. If they are not so timely delivered, the Trustee shall
file an amended Form 10-K including such documents as exhibits reasonably
promptly after they are delivered to the Trustee. The Trustee shall have no
liability with respect to any failure to properly prepare or file such periodic
reports resulting from or relating to the Trustee's inability or failure to
obtain any information not resulting from its own negligence, willful misconduct
or bad faith. The Form 10-K shall also include a certification in the form
attached hereto as Exhibit O (the "Certification"), which shall be signed by a
senior officer of the Depositor in charge of securitization or a senior officer
of the Servicer in charge of the servicing function. The Depositor or the
Servicer, as the case may be, shall deliver the Certification to the Trustee
three (3) Business Days prior to the latest date on which the Form 10-K may be
timely filed. The Trustee, the Depositor and the Servicer shall reasonably
cooperate to enable the Securities and Exchange Commission requirements with
respect to the Trust to be met in the event that the Securities and Exchange
Commission issues additional interpretive guidelines or promulgates rules or
regulations, or in the event of any other change of law that would require
reporting arrangements or the allocation of responsibilities with respect
thereto, as described in this Section 3.22, 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 Trustee shall sign and deliver to the Depositor (or
the Servicer, if the Servicer signs the Certification) a certification (in the
form attached hereto as Exhibit P) for the benefit of the Depositor (or the
Servicer, as the case may be) and its officers, directors and Affiliates
(provided, however, that the Trustee shall not undertake an analysis of the
accountant's report attached as an exhibit to the Form 10-K). In addition, the
Trustee shall indemnify and hold harmless the Depositor or the Servicer
(whichever signs the Certification), 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 Trustee pursuant to this Section 3.22(c), any breach of the
Trustee's obligations under this Section 3.22(c) or the Trustee's negligence,
bad faith or willful misconduct in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless the
Depositor or the Servicer (whichever signs the Certification) and its officers,
directors and affiliates, then the Trustee agrees that it shall contribute to
the amount paid or payable by the Depositor or the Servicer (whichever signs the
Certification), its officers, directors or affiliates as a result of the losses,
claims, damages or liabilities of the Depositor or the Servicer (whichever signs
the Certification), its officers, directors or affiliates in such proportion as
is appropriate to reflect the relative fault of the Depositor or the Servicer
(whichever signs the Certification) and its officers, directors and affiliates
on the one hand and the Trustee on the other in connection with a breach of the
Trustee's obligations under this Section 3.22(c) or the Trustee's negligence,
bad faith or willful misconduct in connection therewith. The Servicer hereby
acknowledges and agrees that the Depositor and the Trustee 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) Upon any filing with the Securities and Exchange
Commission, the Trustee shall promptly deliver to the Depositor a copy of any
such executed report, statement or information.
(e) The obligations set forth in paragraphs (a) through (d) of
this Section shall only apply with respect to periods for which the Trustee is
obligated to file reports on Form 8-K or 10-K pursuant to paragraph (b) of this
Section. Upon request of the Depositor, the Trustee shall prepare, execute and
file with the Securities and Exchange Commission a Form 15 Suspension
Notification with respect to the Trust, 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 Indemnification; Pledge of Class SES
Certificates. (a) In addition to any expenses payable by it pursuant to Section
8.01 in connection with a Servicing Transfer, Bank of America hereby agrees to
indemnify and hold harmless the Trust against any other costs, in an amount up
to the Supplemental Servicing Fee, associated with the retention of a successor
to Bank of America as Servicer in the event of Bank of America's resignation or
termination as Servicer, and, in order to secure this indemnification, Bank of
America hereby grants to the Trustee, on behalf of Certificateholders, a
security interest in the Class SES Certificates, and any substitute collateral
reasonably acceptable to each Rating Agency and pledged to the Trustee in
substitution therefor, in accordance with Section 3.23(b) (the term "Collateral"
shall include the Class SES Certificates and any such substitute collateral; the
term "Substitute Collateral" shall only refer to such substitute collateral). In
connection with such pledge, Bank of America shall deliver to the Trustee the
Class SES Certificates, together with an assignment in blank, executed by Bank
of America, and shall, from time to time upon the request of the Trustee,
execute such other instruments and take such other actions as the Trustee may
request to perfect or maintain the perfection of the security interest in the
Collateral granted hereby.
(b) Bank of America shall have the right to substitute
Substitute Collateral at any time for the Class SES Certificates. If collateral
other than the Class SES Certificates is substituted by Bank of America, the
perfection of the Trustee's security interest in the Substitute Collateral shall
be governed by the terms of the instrument effecting the substitution. Any such
substitution of Substitute Collateral for the Class SES Certificates may be made
only if Bank of America delivers to the Trustee and each Rating Agency an
Opinion of Counsel to the effect that the Trustee will have a perfected security
interest in such Substitute Collateral and obtains a letter from each Rating
Agency stating that such substitution will not result in a downgrading or
withdrawal of the respective ratings then assigned to the Certificates. Any
Substitute Collateral or proceeds consisting of cash shall be held by the
Trustee in a segregated trust account for the benefit of the Trust and invested
in Permitted Investments and applied to make payments of the Supplemental
Servicing Fee. Following any such substitution, the lien of the Trustee in the
Class SES Certificates shall be terminated, the Class SES Certificates shall no
longer constitute Collateral under this Agreement, and the Trustee shall
promptly deliver the Class SES Certificates as directed by Bank of America. In
the event that Bank of America sells its interest in the Class SES Certificates,
Bank of America shall provide Substitute Collateral complying with the
requirements of this Section 3.23(b).
(c) If Bank of America resigns or is terminated as Servicer in
accordance with the terms of this Agreement the Trustee shall either (i)
transfer to itself as Trustee, and register in its or its nominee's name, any
Collateral then pledged to the Trustee, and use all distributions received in
respect of the Collateral to effect the payment of the Supplemental Servicing
Fee to any successor Servicer on any Distribution Date or (ii) sell, transfer,
assign or otherwise dispose of and deliver all or any part of any Collateral
pledged hereunder, in each case in one or more parcels or blocks at the same or
different times, applying the proceeds actually received therefrom (after
deduction of costs and expenses thereof) to the purchase of an alternative cash
flow instrument or security in an amount sufficient to make provision for the
payment of the Supplemental Servicing Fee to the successor Servicer on each
Distribution Date and the Trustee shall pay to the Successor Servicer from
amounts received by the Trustee or such alternative cash flow instrument or
security. The Trustee shall give Bank of America not less than ten days prior
written notice of the time and place of any public sale or other intended public
disposition of any Collateral, and not less than ten days prior written notice
of the date on which the Trustee may conduct any private sale or other intended
private disposition of any Collateral. Bank of America agrees that such notice,
where required, constitutes "reasonable notification" within the meaning of
Section 9-612 or relevant successor provision of the Uniform Commercial Code, as
in effect in the State of New York.
(d) All distributions received by the Trustee in respect of
the Collateral prior to the date on which Bank of America resigns or is
terminated as Servicer shall be remitted by the Trustee to Bank of America on
the date received by wire transfer of immediately available funds to the account
designated in writing by Bank of America. Any such distributions received on or
after the date on which Bank of America resigns or is terminated as Servicer
shall be retained by the Trustee as additional Collateral and shall be disposed
of in accordance with Section 3.23(c) above.
(e) In the event that the Trustee exercises the remedy set
forth in Section 3.23(c)(i) above, the Trustee shall remit to Bank of America,
on each Distribution Date, by wire transfer of immediately available funds, the
excess, if any, of (i) all amounts received by the Trustee in respect of the
Collateral subsequent to the immediately preceding Distribution Date and on or
prior to the current Distribution Date over (ii) the amount of the Supplemental
Servicing Fee payable to the successor Servicer on such Distribution Date. In
the event that the Trustee exercises the remedy described in Section 3.23(c)(ii)
above, the Trustee shall promptly remit to Bank of America, by wire transfer of
immediately available funds, the excess, if any, of the net proceeds received by
the Trustee upon the sale of other disposition of the Collateral, over the cost
of any instrument or security acquired with such proceeds.
(f) Bank of America's liability hereunder shall be payable
solely from the cash flow received in respect of any Collateral or any
instrument or security acquired by the Trustee with the proceeds of disposition
of any Collateral. In no event shall Bank of America be liable to the Trustee,
Certificateholders or any successor Servicer for the amount of any shortfall in
the event that the cash flow received in respect of any Collateral or any
instrument or security acquired by the Trustee with the proceeds of disposition
of any Collateral shall be insufficient to pay the Supplemental Servicing Fee on
any Distribution Date.
(g) Any sale of the Class SES Certificates pursuant to Section
3.23(c)(ii), shall be subject to the restrictions on transfer set forth in
Section 6.02(d) and (e).
(h) In connection with the pledge of the Class SES
Certificates to the Trustee, on behalf of Certificateholders, Bank of America
represents and warrants to the Trustee as of the date hereof as follows:
(i) This Agreement creates a valid and continuing security
interest (as defined in the applicable Uniform Commercial Code) in
the Class SES Certificates in favor of the Trustee, which security
interest is prior to all other liens, mortgages, pledges, charges,
encumbrances, adverse claims or other security interests, and is
enforceable as such against creditors of and purchasers from Bank of
America.
(ii) The Class SES Certificates constitute "certificated
securities" within the meaning of the applicable Uniform Commercial
Code.
(iii) Bank of America owns and has good and marketable title
to the Class SES Certificates free and clear of any Person.
(iv) All original executed copies of each physical certificate
that constitute or evidence the Class SES Certificates have been
delivered to the Trustee. Each such physical certificate either (i)
is in bearer form, (ii) has been indorsed, by an effective
indorsement, to the Trustee or in blank or (iii) has been registered
in the name of the Trustee.
(v) Other than the security interest granted to the Trustee
pursuant to this Agreement, Bank of America has not pledged,
assigned, sold, granted a security interest in, or otherwise
conveyed any of the Class SES Certificates. Bank of America has not
authorized the filing of and is not aware of any financing
statements against Bank of America that include a description of
collateral covering the Class SES Certificates other than any
financing statement that has been terminated. Bank of America is not
aware of any judgment or tax lien filings against Bank of America.
(vi) None of the physical certificates that constitute or
evidence the Class SES Certificates have any marks or notations
indicating that they have been pledged, assigned or otherwise
conveyed to any Person other than the Trustee.
The representations and warranties set forth in this Section
3.23(h) shall survive the execution and delivery of this Agreement.
No failure of the Trustee to exercise, and no delay by the
Trustee in exercising any right arising from a breach of any representation or
warranty set forth in this Section 3.23(h) shall operate as a waiver thereof.
Bank of America will from time to time take any action as may
be necessary or desirable to maintain or preserve the perfected first lien
security interest in the Class SES Certificates granted to the Trustee under
this Agreement.
Section 3.24 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 Business Day following each Determination
Date, the Servicer shall deliver to the Trustee, a Servicer's Certificate (in
substance and format mutually acceptable to the Servicer and the Trustee)
certified by a Servicing Officer setting forth the information necessary in
order for the Trustee to perform its obligations under this Agreement. The
Trustee may conclusively rely upon the information contained in a Servicer's
Certificate for all purposes hereunder and shall have no duty to verify or
re-compute any of the information contained therein.
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01 Distributions . On each Distribution Date, based
solely on the information in the Servicer's Certificate, the Trustee shall
distribute out of the 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 or a Class A-P
Certificate, by wire transfer or by such other means of payment as such
Certificateholder and the Trustee shall agree upon, such Certificateholder's
Percentage Interest in the amount to which the related Class of Certificates is
entitled in accordance with the priorities set forth below in Section 5.02.
Notwithstanding the foregoing, the distribution to the Holders of the Class SES
Certificates shall be reduced by the amount of the Class SES Compensating
Interest for such Distribution Date.
None of the Holders of any Class of Certificates, the
Depositor, the Servicer or the Trustee shall in any way be responsible or liable
to Holders of any Class of Certificates in respect of amounts properly
previously distributed on any such Class.
Amounts distributed with respect to any Class of Certificates
(other than any Ancillary Income distributed with respect to the Class SES
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 Trustee shall withdraw from the Certificate Account (to the
extent funds are available therein) (1) the amounts payable to the Trustee
pursuant to Sections 3.11(b)(i) and 3.11(b)(ii) and shall pay such funds to
itself, and (2) the Pool Distribution Amount for each Loan Group, in an amount
as specified in written notice received by the Trustee from the Servicer no
later than the Business Day following the related Determination Date, and shall
apply such funds, first, to distributions in respect of the Uncertificated
Lower-Tier Interests as specified in this Section 5.02(a) and to the Class
1-A-LR Certificate, and then to distributions on the Certificates (other than
the Class 1-A-LR Certificate). Distributions shall be made on the Certificates
in the following order of priority and to the extent of such funds, paying
priorities (i) through (iv) to each Group from the applicable Pool Distribution
Amount and priorities (v) and (vi) from the remaining combined Pool Distribution
Amounts, in the following order of priority and to the extent of such funds:
(i) pro rata, to the applicable Class SES and Class WIO
Component, an amount allocable to interest equal to the Component
Interest Distribution Amount for such Component;
(ii) to each Class of Class A Certificates and the Class A-P
Component of such Group, an amount allocable to interest equal to
the Interest Distribution Amount for such Class or Component
Interest Distribution Amount for such Component, as applicable, and
any shortfall being allocated among such Classes and Component in
proportion to the amount of the Interest Distribution Amount or
Component Interest Distribution Amount that would have been
distributed in the absence of such shortfall;
(iii) concurrently to the Class A Certificates of a Group
(other than the Class A-P Certificates) and the Class A-P Component
of such Group, pro rata, based on their respective Senior Principal
Distribution Amount and Ratio Strip Principal Amount, (A) to the
Class A Certificates of such Group, in an aggregate amount up to the
Senior Principal Distribution Amount for such Group, such
distribution to be allocated among such Classes in accordance with
Section 5.02(b) and (B) to the Class A-P Component of such Group in
an aggregate amount up to the Ratio Strip Principal Amount for such
Group;
(iv) to the Class A-P Component of such Group, any applicable
Ratio Strip Deferred Amount, up to the Subordinate Principal
Distribution Amounts for all Loan Groups for such Distribution Date
from amounts otherwise distributable first to the Class B-6
Certificates pursuant to clause (v)(L) below, second to the Class
B-5 Certificates pursuant to clause (v)(J) below, third to the Class
B-4 Certificates pursuant to clause (v)(H) below, fourth to the
Class B-3 Certificates pursuant to clause (v)(F) below, fifth to the
Class B-2 Certificates pursuant to clause (v)(D) below and finally
to the Class B-1 Certificates pursuant to clause (v)(B) below. In
the event the Ratio Strip Deferred Amounts for the Class A-P
Components exceed the amount available for distribution, such amount
will be divided pro rata among the Components based on the Ratio
Strip Deferred Amounts;
(v) 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 Ratio Strip Deferred
Amount pursuant to clause (iv) 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 Ratio Strip Deferred
Amount pursuant to clause (iv) 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 Ratio Strip Deferred
Amount pursuant to clause (iv) 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 Ratio Strip Deferred
Amount pursuant to clause (iv) 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 Ratio Strip Deferred
Amount pursuant to clause (iv) 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 Ratio Strip Deferred
Amount pursuant to clause (iv) above until the Class
Certificate Balance thereof has been reduced to zero; and
(vi) to the Holder of the Class 1-A-R Certificate, any amounts
remaining in the Upper-Tier Certificate Sub-Account and to the
Holder of the Class 1-A-LR Certificate, any remaining Pool
Distribution Amounts.
Notwithstanding the foregoing, the amounts payable by the
Trustee on the Class WIO Certificates on any Distribution Date shall be reduced
by any amounts retained the Servicer pursuant to Section 3.11(a)(viii)(b).
On any Distribution Date, amounts distributed in respect of
Ratio Strip Deferred Amounts will not reduce the Component Balance of the
applicable Class A-P Component.
All distributions in respect of the Interest Distribution
Amount for a Class or the Component Interest Distribution Amount for a Component
will be applied first with respect to the amount payable pursuant to clause (i)
of the definition of "Interest Distribution Amount," or "Component Interest
Distribution Amount," as applicable, and second with respect to the amount
payable pursuant to clause (ii) of such definitions.
On each Distribution Date, the Trustee, subject to Section
5.01, shall distribute to the Holders of the Class SES Certificates, any
Ancillary Income, which shall be treated as paid outside the Lower-Tier REMIC
and the Upper-Tier REMIC.
On each Distribution Date, the Trustee 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
be included in the Pool Distribution Amount.
On each Distribution Date, all distributions of principal
shall be made first to the Class 1-LP Interest, Class 2-LP Interest and Class
3-LP Interest, so as to keep the principal balances thereof at all times equal
to the Component Balances of the Class 1-A-P Component, Class 2-A-P Component
and the Class 3-A-P Component, respectively; second, to the Class 1-LS Interest,
the Class 2-LS Interest and the Class 3-LS Interest, so as to keep the principal
balances thereof (computed to eight decimal places) equal to 0.100% of the Group
Subordinate Amount for Loan Group 1, Loan Group 2 and Loan Group 3, respectively
(except that if any such amount is greater than on the preceding Distribution
Date, the least amount of principal shall be distributed to the Class 1-LS
Interest, Class 2-LS Interest and Class 3-LS Interest such that the Subordinate
Balance Ratio is maintained); and third, any remaining principal to the Class
1-L Interest, Class 2-L Interest and Class 3-L Interest. Any distributions of
principal made to the Uncertificated Lower-Tier Interests pursuant to this
paragraph shall be made (a) from the Group 1 Mortgage Loans to the
Uncertificated Lower-Tier Interests beginning with the numeral "1," (b) from the
Group 2 Mortgage Loans to the Uncertificated Lower-Tier Interests beginning with
the numeral "2" and (c) from the Group 3 Mortgage Loans to the Uncertificated
Lower-Tier Interests beginning with the numeral "3."
Realized Losses shall be applied after all distributions have
been made on each Distribution Date first, to the Class 1-LP Interest, the Class
2-LP Interest and the Class 3-LP Interest, so as to keep their principal
balances equal to the Component Balances of the Class 1-A-P Component, Class
2-A-P Component and Class 3-A-P Component, respectively; second, to the Class
1-LS Interest, the Class 2-LS Interest and the Class 3-LS Interest, so as to
keep their principal balances (computed to eight decimal places) equal to 0.100%
of the Group Subordinate Amount for Loan Group 1, Loan Group 2 and Loan Group 3,
respectively (except that if any such amount is greater than on the preceding
Distribution Date, the least amount of Realized Losses shall be allocated to the
Class 1-LS Interest, Class 2-LS Interest and Class 3-LS Interest such that the
Subordinate Balance Ratio is maintained); and third, the remaining Realized
Losses shall be allocated to the Class 1-L Interest, Class 2-L Interest and
Class 3-L Interest. Any Realized Losses allocated to the Uncertificated
Lower-Tier Interests pursuant to this paragraph shall be (a) from Realized
Losses allocated to Loan Group 1 in the case of Uncertificated Lower-Tier
Interests beginning with the numeral "1" (b) from Realized Losses allocated to
Loan Group 2 in the case of Uncertificated Lower-Tier Interests beginning with
the numeral "2" and (c) from Realized Losses allocated to Loan Group 3 in the
case of Uncertificated Lower-Tier Interests beginning with the numeral "3."
As of any date, (i) the principal balance of the Class 1-LP
Interest will be equal to the Component Balance of the Class 1-A-P Component,
(ii) the principal balance of the Class 2-LP Interest will be equal to the
Component Balance of the Class 2-A-P Component and (iii) the principal balance
of the Class 3-LP Interest will be equal to the Component Balance of the Class
3-A-P Component. As of any date, (i) the notional balance of the Class 1-LWIO
Interest will be equal to the Class 1-WIO Notional Amount, (ii) the notional
balance of the Class 2-LWIO Interest will be equal to the Class 2-WIO Notional
Amount and (iii) the notional balance of the Class 3-LWIO Interest will be equal
to the Class 3-WIO Notional Amount. As of any date, (i) the notional balance of
the Class 1-LSES Interest will be equal to the Class 1-SES Notional Amount, (ii)
the notional balance of the Class 2-LSES Interest will be equal to the Class
2-SES Notional Amount and (iii) the notional balance of the Class 3-LSES
Interest will be equal to the Class 3-SES Notional Amount. As of any date, the
aggregate principal balance of the Class 1-L Interest, the Class 1-LS Interest
and the Class 1-LP Interest shall equal the aggregate Stated Principal Balance
of the Group 1 Mortgage Loans minus the Class Certificate Balance of the Class
1-A-LR Certificate. As of any date, the aggregate principal balance of the Class
2-L Interest, the Class 2-LS Interest and the Class 2-LP Interest shall equal
the aggregate Stated Principal Balance of the Group 2 Mortgage Loans. As of any
date, the aggregate principal balance of the Class 3-L Interest, the Class 3-LS
Interest and the Class 3-LP Interest shall equal the aggregate Stated Principal
Balance of the Group 3 Mortgage Loans.
The pass-through rate with respect to the Class 1-L Interest
and the Class 1-LS Interest shall be the Group 1 Lower-Tier Rate. The
pass-through rate with respect to the Class 2-L Interest and Class 2-LS Interest
shall be the Group 2 Lower-Tier Rate. The pass-through rate with respect to the
Class 3-L Interest and Class 3-LS Interest shall be the Group 3 Lower-Tier Rate.
The pass-through rate with respect to the Class 1-LWIO Interest, the Class
2-LWIO Interest and the Class 3-LWIO Interest shall be the same as the
Pass-Through Rate for the Class 1-WIO Component, the Class 2-WIO Component and
the Class 3-WIO Component, respectively, as each such rate is described in
footnote 12 of the Preliminary Statement. The pass-through rate for the Class
1-LP Interest shall be (i) for each Distribution Date occurring prior to and
including the Distribution Date in May 2006, zero, and (ii) for each
Distribution Date occurring on and after the Distribution Date in June 2006, the
Group 1 Lower-Tier Rate. The pass-through rate for the Class 2-LP Interest shall
be (i) for each Distribution Date occurring prior to and including the
Distribution Date in May 2008, zero, and (ii) for each Distribution Date
occurring on and after the Distribution Date in June 2008, the Group 2
Lower-Tier Rate. The pass-through rate for the Class 3-LP Interest shall be (i)
for each Distribution Date occurring prior to and including the Distribution
Date in May 2010, zero, and (ii) for each Distribution Date occurring on and
after the Distribution Date in June 2010, the Group 3 Lower-Tier Rate. The
pass-through rate for the Class 1-LSES Interest shall be 0.325% per annum. The
pass-through rate for the Class 2-LSES Interest and the Class 3-LSES Interest
shall be 0.200% per annum. Any Non-Supported Interest Shortfalls and Relief Act
Reductions will be allocated to each Uncertificated Lower-Tier Interest in the
same relative proportions as interest is allocated to such Uncertificated
Lower-Tier Interest, except that the Class 1-LWIO Interest, the Class 2-LWIO
Interest, the Class 3-LWIO Interest, the Class 1-LSES Interest, the Class 2-LSES
Interest and the Class 3-LSES Interest will not be allocated any Non-Supported
Interest Shortfalls and Relief Act Reductions. Distributions on each of the
Class 1-LSES Interest, the Class 2-LSES Interest and the Class 3-LSES Interest,
respectively, shall be reduced to the extent that Class SES Compensating
Interest reduces distributions to the Class 1-SES Component, the Class 2-SES
Component and the Class 3-SES Component, respectively. Amounts distributed to
the Uncertificated Lower-Tier Interests in respect of principal and interest
with respect to any Distribution Date are referred to herein collectively as the
"Lower-Tier Distribution Amount."
(b) (i) With respect to the Class A Certificates of Group 1:
On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 1-A Certificates pursuant
to Section 5.02(a)(iii) for such Distribution Date, will be distributed in the
following order of priority:
first, concurrently, to the Class 1-A-R and Class 1-A-LR
Certificates, pro rata, until their Class Certificate Balances
have been reduced to zero; and
second, concurrently, to the Class 1-A-1 and Class 1-A-2
Certificates, pro rata, until their Class Certificate Balances
have been reduced to zero.
(ii) With respect to the Class A Certificates of Group 2:
On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 2-A Certificates pursuant
to Section 5.02(a)(iii) for such Distribution Date, will be distributed as
principal, concurrently, to the Class 2-A-1, Class 2-A-2, Class 2-A-3, Class
2-A-4, Class 2-A-5, Class 2-A-6 and Class 2-A-7 Certificates, pro rata, until
their Class Certificate Balances have been reduced to zero.
(iii) With respect to the Class A Certificates of Group 3:
On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 3-A Certificates pursuant
to Section 5.02(a)(iii) for such Distribution Date, will be distributed as
principal to the Class 3-A-1 Certificates, until their Class Certificate Balance
has been reduced to zero.
(iv) Notwithstanding the foregoing, on each Distribution Date
prior to the Senior Credit Support Depletion Date but on or after
the date on which the aggregate Class Certificate Balance of the
Class A Certificates of a Group have been reduced to zero, amounts
otherwise distributable from the Unscheduled Principal Amounts on
the Subordinate Certificates will be paid as principal to the
remaining classes of Class A Certificates (other than the Class A-P
Certificates) in accordance with the priorities set forth for the
applicable Group in (i), (ii) or (iii) above, provided that on such
Distribution Date (a) the Aggregate Subordinate Percentage for such
Distribution Date is less than twice the initial Aggregate
Subordinate Percentage or (b) 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, as a
percentage of the aggregate Class Certificate Balance of the
Subordinate Certificates (averaged over the preceding six-month
period), is greater than or equal to 50%. If the Class A
Certificates of two or more Groups remain outstanding, the
distributions described above will be made to the Class A
Certificates of such Groups, pro rata, in proportion to the
aggregate Class Certificate Balance of the Class A Certificates of
each such Group. In addition, if on any Distribution Date the
aggregate Class Certificate Balance of the Class A Certificates of a
Group (but not the Class A-P Component of such Group and after
giving effect to distributions to be made on such Distribution Date)
is greater than the Pool Stated Principal Balance (Non-Ratio Strip
Portion) of the related Loan Group (any such Group, the
"Undercollateralized Group" and any such excess, the
"Undercollateralized Amount"), all amounts otherwise distributable
as principal on the Subordinate Certificates pursuant to
5.02(a)(iv)(L), (H), (F), (D) and (B), in that order, will be paid
as principal to the Class A Certificates of the Undercollateralized
Group in accordance with the priorities set forth for the applicable
Group above under (i), (ii) or (iii) until the aggregate Class
Certificate Balance of the Class A Certificates of the
Undercollateralized Group equals the Pool Stated Principal Balance
(Non-Ratio Strip Portion) of the related Loan Group. Also, the
amount of any Class Unpaid Interest Shortfalls or Component Unpaid
Interest Shortfalls with respect to the Undercollateralized Group
(including any Class Unpaid Interest Shortfalls or Component Unpaid
Interest Shortfalls for such Distribution Date) will be paid to the
Undercollateralized Group (including the Class SES and WIO Component
of such Group and Class A-P Component of such Group (after such
Component begins to receive distributions of interest)) prior to the
payment of any Undercollateralized Amount from amounts otherwise
distributable as principal on the Subordinate Certificates pursuant
to Section 5.02(a)(v)(L), (H), (F), (D) and (B), in that order: such
amount will be paid to such Undercollateralized Group in accordance
with the priorities set forth in Section 5.02(a)(i) and (ii) up to
their Interest Distribution Amounts for such Distribution Date. If
two Groups are Undercollateralized Groups, the distributions
described above will be made, pro rata, in proportion to the amount
by which the aggregate Class Certificate Balance of the Class A
Certificates of each such Group exceeds the Pool Stated Principal
Balance (Non-Ratio Strip Portion) of the related Loan Group.
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 with respect to a Loan Group
available to be distributed as principal of the Class A Certificates of the
Related Group (but not the Class A-P Component of such Group) shall be
distributed concurrently, as principal, on such Classes, pro rata, on the basis
of their respective Class Certificate Balances, until the Class Certificate
Balances thereof are reduced to zero.
(c) On each Distribution Date, Accrued Certificate Interest
for each Class of Certificates and Accrued Component Interest for each Component
for such Distribution Date (other than the Class A-P Certificates prior to the
Distribution Date in June 2006 and the Class SES and Class WIO Certificates and
Components) shall be reduced by such Class' or Component's pro rata share, based
on such Class' Interest Distribution Amount and Component's Component 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 in such Loan Group 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)(v), (A) 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 Pool Principal Balance (Non-Ratio Strip Portion)
for all Loan Groups of all the Certificates immediately prior to such
Distribution Date (the "Fractional Interest") is less than the Original
Fractional Interest for such Class, no distribution of principal in respect of
clause (ii) of the Subordinate Principal Distribution Amounts will be made to
any Classes junior to such Class (the "Restricted Classes"), 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; provided, however, if the aggregate Class Certificate Balances of the
Subordinate Certificates that are not Restricted Classes are reduced to zero,
then notwithstanding the above, 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) and (B) if with respect
to any Class of Subordinate Certificates on any Distribution Date prior to the
Distribution Date in June 2014, the Fractional Interest of such Class is less
than twice its Original Fractional Interest and the Senior Prepayment Percentage
for such Distribution Date is determined in accordance with clause (ii) or (iii)
of the second sentence of the definition of "Senior Prepayment Percentage," the
Classes of Subordinate Certificates that have higher numerical designations will
receive in respect of clause (ii) of the Subordinate Principal Distribution
Amounts, an amount equal to the product of their Pro Rata Shares and the
percentages set forth in the following table:
Distribution Date Occurring Percentage
--------------------------- ----------
July 2003 through June 2010 0%
July 2010 through June 2011 30%
July 2011 through June 2012 40%
July 2012 through June 2013 60%
July 2013 through June 2014 80%
Each Class of Subordinate Certificates that received its full Pro Rata Share
will be allocated any remaining amount in respect of clause (ii) of the
Subordinate Principal Distribution Amounts, pro rata (based on the Class
Certificate Balances of only those Subordinate Certificates that received a full
Pro Rata Share).
Section 5.03 Allocation of Losses. (a) On or prior to each
Determination Date, the Servicer shall inform the Trustee 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 on the Mortgage Loans in each Loan Group.
Based on such information, the Trustee shall determine the total amount of
Realized Losses on the Mortgage Loans in each Loan Group with respect to the
related Distribution Date.
The principal portion of Realized Losses on the Mortgage Loans
in a Loan Group with respect to any Distribution Date shall be allocated as
follows:
(i) the applicable Ratio Strip Percentage of the principal
portion of any Realized Loss with respect to a Discount Mortgage
Loan in a Loan Group shall be allocated to the Class A-P Component
of the Related Group until the Component Balance thereof is reduced
to zero; and
(ii) the applicable Non-Ratio Strip Percentage of the
principal portion of any Realized Loss with respect to a Mortgage
Loan in such Loan Group 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 of the
Related Group, 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.
(b) The Component Balance of the Class A-P Component of a
Group shall be reduced on each Distribution Date by the amount, if any, by which
the Component Balance of such Class A-P Component (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
(Ratio Strip Portion) for the Related Loan Group 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 Ratio Strip
Deferred Amounts on such Distribution Date) exceeds the sum of the Adjusted Pool
Amounts for such Distribution Date.
After the Senior Credit Support Depletion Date, the Class
Certificate Balances of the Class A Certificates of the Related Group in the
aggregate (but not the Component Balance of the Class A-P Component of such
Group) 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 Class A Certificates of such Group (but not the Component Balance of the
Class A-P Component of such Group) (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 Loan Group and Distribution Date and (ii) the Adjusted Pool
Amount (Ratio Strip Portion) for such Loan Group and Distribution Date.
Any such reduction shall be allocated among the Class A
Certificates of such Group (but not the Class A-P Component of such Group) 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 of such
Group, pro rata, in accordance with the priorities set forth in Section 5.02.
(e) After the Senior Credit Support Depletion Date, on any
Distribution Date on which the Class 1-A-2 Loss Allocation Amount is greater
than zero, the Class Certificate Balance of the Class 1-A-2 Certificates will be
reduced by the Class 1-A-2 Loss Allocation Amount and, notwithstanding Section
5.03(a)(ii) and Section 5.03(b), the Class Certificate Balance of the Class
1-A-1 Certificates will not be reduced by the Class 1-A-2 Loss Allocation
Amount. After the Senior Credit Support Depletion Date, on any Distribution Date
on which the Class 2-A-6 Loss Allocation Amount is greater than zero, the Class
Certificate Balance of the Class 2-A-6 Certificates will be reduced by the Class
2-A-6 Loss Allocation Amount and, notwithstanding Section 5.03(a)(ii) and
Section 5.03(b), the Class Certificate Balance of the Class 2-A-4 Certificates
will not be reduced by the Class 2-A-4 Loss Allocation Amount. After the Senior
Credit Support Depletion Date, on any Distribution Date on which the Class 2-A 7
Loss Allocation Amount is greater than zero, the Class Certificate Balance of
the Class 2-A-7 Certificates will be reduced by the Class 2-A-7 Loss Allocation
Amount and, notwithstanding Section 5.03(a)(ii) and Section 5.03(b), the Class
Certificate Balance of the Class 2-A-5 Certificates will not be reduced by the
Class 2-A-7 Loss Allocation Amount.
(f) With respect to any Distribution Date, Realized Losses
allocated pursuant to this Section 5.03 will be allocated to each Uncertificated
Lower-Tier Interest in an amount equal to the amount allocated to its respective
Corresponding Upper-Tier Class, Classes, Component or Components as provided
above. Realized Losses allocated pursuant to this Section 5.03 will be allocated
to each Uncertificated Lower-Tier Interest as described in Section 5.02(a).
Section 5.04 Statements to Certificateholders. (a) Prior to
the Distribution Date in each month, based upon the information provided to the
Trustee on the Servicer's Certificates delivered to the Trustee pursuant to
Section 4.01, the Trustee shall determine the following information with respect
to such Distribution Date:
(i) for each Group, the amount allocable to principal,
separately identifying the aggregate amount of any Principal
Prepayments and Liquidation Proceeds included therein;
(ii) for each Group and the Class SES and Class WIO
Certificates, the amount allocable to interest, any Class Unpaid
Interest Shortfall or Component Unpaid Interest Shortfall included
in such distribution and any remaining Class Unpaid Interest
Shortfall or Component 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) for each Loan Group, the Pool Stated Principal Balance for
the following Distribution Date;
(vi) for each Loan Group, the Senior Percentage and the
Subordinate Percentage for the following Distribution Date and the
Total Senior Percentage and Aggregate Subordinate Percentage for the
following Distribution Date;
(vii) the amount of the Servicing Fee paid to or retained by
the Servicer with respect to each Loan Group and such Distribution
Date and, if applicable, the amount of the Supplemental Servicing
Fee payable to the Servicer with respect to such Distribution Date;
(viii) the Pass-Through Rate for each such Class of
Certificates (or Component) with respect to such Distribution Date;
(ix) for each Loan Group, the amount of Periodic Advances
included in the distribution on such Distribution Date and the
aggregate amount of Periodic Advances outstanding as of the close of
business on such Distribution Date;
(x) for each Loan Group, the number and aggregate principal
amounts of Mortgage Loans (A) delinquent (exclusive of Mortgage
Loans in foreclosure or in bankruptcy) (1) 1 to 30 days (2) 31 to 60
days (3) 61 to 90 days and (4) 91 or more days, (B) in foreclosure,
as of the close of business on the last day of the calendar month
preceding such Distribution Date and (C) in bankruptcy, as of the
close of business on the last day of the calendar month preceding
such Distribution Date;
(xi) for each Loan Group, with respect to any Mortgage Loan
that became an REO Property during the preceding calendar month, the
loan number and Stated Principal Balance of such Mortgage Loan as of
the close of business on the Determination Date preceding such
Distribution Date and the date of acquisition thereof;
(xii) for each Loan Group, the total number and principal
balance of any REO Properties (and market value, if available) as of
the close of business on the Determination Date preceding such
Distribution Date;
(xiii) for each Group, the Senior Prepayment Percentage and
the Subordinate Prepayment Percentage for the following Distribution
Date;
(xiv) for each Loan Group, the aggregate amount of Realized
Losses incurred during the preceding calendar month and for each
Group, any Ratio Strip Deferred Amounts for such Distribution Date;
(xv) the Class 1-A-SES Notional Amount, the Class 1-A-WIO
Notional Amount, the Class 2-SES Notional Amount, the Class 2-WIO
Notional Amount, the Class 3-SES Notional Amount and the Class 3-WIO
Notional Amount for such Distribution Date;
(xvi) the Ancillary Income for such Distribution Date; and
(xvii) the Class SES Compensating Interest for such
Distribution Date.
(b) No later than each Distribution Date, the Trustee, 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 Trustee shall prepare and
furnish to each Financial Market Service, in electronic or such other format and
media mutually agreed upon by the Trustee, the Financial Market Service and the
Depositor, the information contained in the statement described in Section
5.04(a) for such Distribution Date.
The Trustee will make the monthly statement to
Certificateholders (and, at its option, any additional files containing the same
information in an alternative format) available each month to
Certificateholders, and other parties to this Agreement via the Trustee's
Internet website. The Trustee's Internet website shall initially be located at
"xxx.xxxxxxx.xxx". Assistance in using the website can be obtained by calling
the Trustee's customer service desk at (000) 000-0000. Parties that are unable
to use the website are entitled to have a paper copy mailed to them via first
class mail by calling the customer service desk and indicating such. The Trustee
shall have the right to change the way the monthly statements to
Certificateholders are distributed in order to make such distribution more
convenient and/or more accessible to the above parties and the Trustee shall
provide timely and adequate notification to all above parties regarding any such
changes.
Within a reasonable period of time after the end of each
calendar year, the Trustee shall furnish to each Person who at any time during
the calendar year was the Holder of a Certificate, if requested in writing by
such Person, a statement containing the information set forth in clauses (i) and
(ii) of Section 5.04(a), in each case aggregated for such calendar year or
applicable portion thereof during which such Person was a Certificateholder.
Such obligation of the Trustee shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the
Trustee pursuant to any requirements of the Code as from time to time in force.
The Trustee shall deliver to the Holders of Certificates any
reports or information the Trustee is required by this Agreement or the Code,
Treasury Regulations or REMIC Provisions to deliver to the Holders of
Certificates, and the Trustee shall prepare and provide to the
Certificateholders (by mail, telephone, or publication as may be permitted by
applicable Treasury Regulations) such other reasonable information as the
Trustee deems necessary or appropriate or is required by the Code, Treasury
Regulations, and the REMIC Provisions including, but not limited to, (i)
information to be reported to the Holders of the Residual Certificates for
quarterly notices on Schedule Q (Form 1066) (which information shall be
forwarded to the Holders of the Residual Certificates by the Trustee), (ii)
information to be provided to the Holders of Certificates with respect to
amounts which should be included as interest and original issue discount in such
Holders' gross income and (iii) information to be provided to all Holders of
Certificates setting forth the percentage of each REMIC's assets, determined in
accordance with Treasury Regulations using a convention, not inconsistent with
Treasury Regulations, selected by the Trustee in its absolute discretion, that
constitute real estate assets under Section 856 of the Code, and assets
described in Section 7701(a)(19)(C) of the Code; provided, however, that in
setting forth the percentage of such assets of each REMIC, nothing contained in
this Agreement, including without limitation Section 7.03 hereof, shall be
interpreted to require the Trustee periodically to appraise the fair market
values of the assets of the Trust Estate or to indemnify the Trust Estate or any
Certificateholders from any adverse federal, state or local tax consequences
associated with a change subsequently required to be made in the Depositor's
initial good faith determinations of such fair market values (if subsequent
determinations are required pursuant to the REMIC Provisions) made from time to
time.
Section 5.05 Tax Returns and Reports to Certificateholders.
(a) For federal income tax purposes, each REMIC shall have a calendar year
taxable year and shall maintain its books on the accrual method of accounting.
(b) The Trustee shall prepare or cause to be prepared, shall
execute and shall file or cause to be filed with the Internal Revenue Service
and applicable state or local tax authorities income tax information returns for
each taxable year with respect to each REMIC containing such information at the
times and in the manner as may be required by the Code, the Treasury Regulations
or state or local tax laws, regulations, or rules, and shall furnish or cause to
be furnished to each REMIC and the Certificateholders the schedules, statements
or information at such times and in such manner as may be required thereby.
Within 30 days of the Closing Date, the Trustee shall furnish or cause to be
furnished to the Internal Revenue Service, on Form 8811 or as otherwise required
by the Code or the Treasury Regulations, the name, title, address and telephone
number of the person that Holders of the Certificates may contact for tax
information relating thereto, together with such additional information at the
time or times and in the manner required by the Code or the Treasury
Regulations. Such federal, state, or local income tax or information returns
shall be signed by the Trustee, or such other Person as may be required to sign
such returns by the Code, the Treasury Regulations or state or local tax laws,
regulations, or rules.
(c) In the first federal income tax return of each REMIC for
its short taxable year ending December 31, 2003, REMIC status shall be elected
for such taxable year and all succeeding taxable years.
(d) The Trustee will maintain or cause to be maintained such
records relating to each REMIC, including but not limited to records relating to
the income, expenses, assets and liabilities of the Trust Estate, and the
initial fair market value and adjusted basis of the Trust Estate property and
assets determined at such intervals as may be required by the Code or the
Treasury Regulations, as may be necessary to prepare the foregoing returns,
schedules, statements or information.
Section 5.06 Tax Matters Person. The Tax Matters Person shall
have the same duties with respect to each REMIC as those of a "tax matters
partner" under Subchapter C of Chapter 63 of Subtitle F of the Code. The Holder
of the Class 1-A-R Certificate is hereby designated as the Tax Matters Person
for the Upper-Tier REMIC. The Holder of the Class 1-A-LR Certificate is hereby
designated as the Tax Matters Person for the Lower-Tier REMIC. By their
acceptance of the Class 1-A-R or Class 1-A-LR Certificate, as applicable, each
such Holder irrevocably appoints the Trustee as its agent to perform all of the
duties of the Tax Matters Person for the Upper-Tier REMIC and the Lower-Tier
REMIC.
Section 5.07 Rights of the Tax Matters Person in Respect of
the Trustee. The Trustee shall afford the Tax Matters Person, upon reasonable
notice during normal business hours, access to all records maintained by the
Trustee in respect of its duties hereunder and access to officers of the Trustee
responsible for performing such duties. Upon request, the Trustee shall furnish
the Tax Matters Person with its most recent report of condition published
pursuant to law or to the requirements of its supervisory or examining authority
publicly available. The Trustee shall make available to the Tax Matters Person
such books, documents or records relating to the Trustee's services hereunder as
the Tax Matters Person shall reasonably request. The Tax Matters Person shall
not have any responsibility or liability for any action or failure to act by the
Trustee and is not obligated to supervise the performance of the Trustee under
this Agreement or otherwise.
Section 5.08 REMIC Related Covenants. For as long as the Trust
shall exist, the Trustee, the Depositor and the Servicer shall act in accordance
herewith to assure continuing treatment of the Upper-Tier REMIC and the
Lower-Tier REMIC as REMICs and avoid the imposition of tax on any REMIC. In
particular:
(a) The Trustee shall not create, or permit the creation of,
any "interests" in either REMIC within the meaning of Code Section 860D(a)(2)
other than the interests represented by the Regular Certificates, the
Components, the Residual Certificates and the Uncertificated Lower-Tier
Interests.
(b) Except as otherwise provided in the Code, (i) the
Depositor and the Servicer shall not contribute to the Trust Estate and the
Trustee shall not accept property unless substantially all of the property held
in each REMIC constitutes either "qualified mortgages" or "permitted
investments" as defined in Code Sections 860G(a)(3) and (5), respectively, and
(ii) no property shall be contributed to any REMIC after the start-up day unless
such contribution would not subject the Trust Estate to the 100% tax on
contributions to a REMIC after the start-up day of the REMIC imposed by Code
Section 860G(d).
(c) The Trustee shall not accept on behalf of any REMIC any
fee or other compensation for services and neither the Trustee nor the Servicer
shall knowingly accept, on behalf of the Trust Estate any income from assets
other than those permitted to be held by a REMIC.
(d) The Trustee shall not sell or permit the sale of all or
any portion of the Mortgage Loans (other than in accordance with Sections 2.02,
2.04 or 3.14(b)), unless such sale is pursuant to a "qualified liquidation" of
the applicable REMIC as defined in Code Section 860F(a)(4)(A) and in accordance
with Article X.
(e) The Trustee shall maintain books with respect to the Trust
and each REMIC on a calendar year taxable year and on an accrual basis.
Neither the Servicer nor the Trustee shall engage in a
"prohibited transaction" (as defined in Code Section 860F(a)(2)), except that,
with the prior written consent of the Servicer and the Depositor, the Trustee
may engage in the activities otherwise prohibited by the foregoing paragraphs
(b), (c) and (d); provided that the Servicer shall have delivered to the Trustee
an Opinion of Counsel to the effect that such transaction will not result in the
imposition of a tax on any of the Upper-Tier REMIC or the Lower-Tier REMIC and
will not disqualify any REMIC from treatment as a REMIC; and, provided further,
that the Servicer shall have demonstrated to the satisfaction of the Trustee
that such action will not adversely affect the rights of the Holders of the
Certificates and the Trustee and that such action will not adversely impact the
rating of the Certificates.
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates. The Classes of Senior
Certificates and the Subordinate Certificates shall be substantially in the
forms set forth in Exhibits X-0-X-0, X-0-X-0, , X-0-X-X, X-0-X-XX, X-0-X-0,
A-2-A-2, X-0-X-0, X-0-X-0, X-0-X-0, X-0-X-0, X-0-X-0, X-0-X-0, A-A-P, A-SES,
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 Trustee and shall be authenticated
and delivered by the Trustee to or upon the order of the Depositor upon receipt
by the Trustee of the documents specified in Section 2.01. The Class A
Certificates (other than the Class 1-A-R, Class 1-A-LR and Class A-P
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 Subordinate Certificates, the Class A-P
Certificates, the Class SES Certificates and the Class WIO 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 1-A-R and Class 1-A-LR Certificates shall each be in a
minimum denomination of $50. The Senior Certificates (other than the Class
1-A-R, Class 1-A-LR, Class SES and Class WIO Certificates) 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 Trustee by an authorized officer or signatory.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures were affixed, authorized to sign on behalf of
the Trustee shall bind the Trustee, notwithstanding that such individuals or any
of them have ceased to be so authorized prior to the execution and delivery of
such Certificates or did not hold such offices or positions at the date of such
Certificate. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless such Certificate shall have been
manually authenticated by the Trustee substantially in the form provided for
herein, and such authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication.
Section 6.02 Registration of Transfer and Exchange of
Certificates. (a) The Trustee shall cause to be kept at an office or agency in
the city in which the Corporate Trust Office of the Trustee is located a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, the Trustee shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. The Trustee shall
initially serve as Certificate Registrar for the purpose of registering
Certificates and transfers and exchanges of Certificates as herein provided.
(b) At the option of the Certificateholders, Certificates may
be exchanged for other Certificates of authorized denominations of a like Class,
tenor and aggregate Percentage Interest, upon surrender of the Certificates to
be exchanged at any such office or agency. Whenever any Certificates are so
surrendered for exchange, the Trustee shall execute and the Trustee 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 Trustee or the Certificate
Registrar) be duly endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by, the Holder thereof or its attorney duly authorized in writing.
(c) (i) Except as provided in paragraph (c)(iii) below, the
Book-Entry Certificates shall at all times remain registered in the
name of the Depository or its nominee and at all times: (A)
registration of the Certificates may not be transferred by the
Trustee except to another Depository; (B) the Depository shall
maintain book-entry records with respect to the Certificate Owners
and with respect to ownership and transfers of such Book-Entry
Certificates; (C) ownership and transfers of registration of the
Book-Entry Certificates on the books of the Depository shall be
governed by applicable rules established by the Depository; (D) the
Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (E) the Trustee shall
deal with the Depository as the representative of the Certificate
Owners of the Book-Entry Certificates for purposes of exercising the
rights of Holders under this Agreement, and requests and directions
for and votes of the Depository shall not be deemed to be
inconsistent if they are made with respect to different Certificate
Owners; and (F) the Trustee may rely and shall be fully protected in
relying upon information furnished by the Depository with respect to
its Depository Participants and furnished by the Depository
Participants with respect to indirect participating firms and
persons shown on the books of such indirect participating firms as
direct or indirect Certificate Owners.
(ii) All transfers by Certificate Owners of Book-Entry
Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm
representing such Certificate Owner. Each Depository Participant
shall only transfer Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures.
(iii) If (A) (1) the Depository or the Depositor advises the
Trustee in writing that the Depository is no longer willing or able
to properly discharge its responsibilities as Depository, and (2)
the Trustee or the Depositor is unable to locate a qualified
successor, (B) the Depositor at its option advises the Trustee 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 Trustee 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 Trustee 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 Trustee of the related Class of
Certificates by the Depository (or by the Certificate Custodian, if
it holds such Class on behalf of the Depository), accompanied by the
instructions from the Depository for registration, the Trustee shall
issue the Definitive Certificates. None of the Servicer, the
Depositor or the Trustee shall be liable for any delay in delivery
of such instruction and may conclusively rely on, and shall be
protected in relying on, such instructions. The Depositor shall
provide the Trustee with an adequate inventory of certificates to
facilitate the issuance and transfer of Definitive Certificates.
Upon the issuance of Definitive Certificates, the Trustee shall
recognize the Holders of the Definitive Certificates as
Certificateholders hereunder.
(d) No transfer of a Private Certificate shall be made unless
such transfer is exempt from the registration requirements of the 1933 Act and
any applicable state securities laws or is made in accordance with the 1933 Act
and such laws. In the event of any such transfer, (i) unless such transfer is
made in reliance on Rule 144A under the 1933 Act, the Trustee or the Depositor
may require a written Opinion of Counsel (which may be in-house counsel)
acceptable to and in form and substance reasonably satisfactory to the Trustee
and the Depositor that such transfer may be made pursuant to an exemption,
describing the applicable exemption and the basis therefor, from the 1933 Act
and such laws or is being made pursuant to the 1933 Act and such laws, which
Opinion of Counsel shall not be an expense of the Trustee or the Depositor and
(ii) the Trustee shall require a certificate from the Certificateholder desiring
to effect such transfer substantially in the form attached hereto as Exhibit G 1
and a certificate from such Certificateholder's prospective transferee
substantially in the form attached hereto either as Exhibit G-2A or as Exhibit
G-2B, which certificates shall not be an expense of the Trustee or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both or, in the case of the Class SES
Certificates, between Bank of America and the Trustee pursuant to Section 3.23.
The Depositor shall provide to any Holder of a Private Certificate and any
prospective transferees designated by any such Holder, information regarding the
related Certificates and the Mortgage Loans and such other information as shall
be necessary to satisfy the condition to eligibility set forth in Rule
144A(d)(4) for transfer of any such certificate without registration thereof
under the 1933 Act pursuant to the registration exemption provided by Rule 144A.
The Holder of a Private Certificate desiring to effect such transfer shall, and
does hereby agree to, indemnify the Trustee and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
(e) No transfer of an ERISA Restricted Certificate (other than
a transfer of the Class SES Certificates between Bank of America and the Trustee
pursuant to Section 3.23) shall be made unless the transferee delivers to the
Trustee either (i) a representation letter in the form of Exhibit H from the
transferee of such Certificate, which representation letter shall not be an
expense of the Depositor, the Trustee or the Servicer, or (ii) in the case of
any ERISA Restricted Certificate presented for registration in the name of an
employee benefit plan or arrangement, including an individual retirement
account, subject to ERISA, the Code, or any federal, state or local law
("Similar Law") which is similar to ERISA or the Code (collectively, a "Plan"),
or a trustee or custodian of any of the foregoing, an Opinion of Counsel in form
and substance satisfactory to the Trustee 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 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 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; provided, that the transferee
of a Class SES Certificate shall be deemed to have made the representation set
forth in clause (a) of Exhibit H. For purposes of clause (i) of the second
preceding sentence, such representation shall be deemed to have been made to the
Certificate Registrar by the acceptance by a Certificate Owner of a Book-Entry
Certificate of the beneficial interest in any such Class of ERISA-Restricted
Certificates, unless the Certificate Registrar shall have received from the
transferee an alternative representation acceptable in form and substance to the
Depositor. Notwithstanding anything else to the contrary herein, any purported
transfer of an ERISA Restricted Certificate to or on behalf of a Plan without
the delivery to the Trustee and the Servicer of an Opinion of Counsel
satisfactory to the Trustee and the Servicer as described above shall be void
and of no effect.
Neither the Trustee nor the Certificate Registrar shall have
any liability for transfers of Book-Entry Certificates made through the
book-entry facilities of the Depository or between or among any Depository
Participants or Certificate Owners, made in violation of applicable
restrictions. The Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and Persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
To the extent permitted under applicable law (including, but
not limited to, ERISA), the Trustee shall be under no liability to any Person
for any registration of transfer of any ERISA Restricted Certificate that is in
fact not permitted by this Section 6.02 or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
(f) Each Person who has or who acquires any Ownership Interest
in a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions,
and the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its
status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a
Residual Certificate unless such Ownership Interest is a pro rata
undivided interest.
(iii) In connection with any proposed transfer of any
Ownership Interest in a Residual Certificate, the Trustee shall
require delivery to it, in form and substance satisfactory to it, of
an affidavit in the form of Exhibit I hereto from the proposed
transferee.
(iv) Notwithstanding the delivery of an affidavit by a
proposed transferee under clause (iii) above, if a Responsible
Officer of the Trustee has actual knowledge that the proposed
transferee is not a Permitted Transferee, no transfer of any
Ownership Interest in a Residual Certificate to such proposed
transferee shall be effected.
(v) No Ownership Interest in a Residual Certificate may be
purchased by or transferred to any Person that is not a U.S. Person,
unless (A) such Person holds such Residual Certificate in connection
with the conduct of a trade or business within the United States and
furnishes the transferor and the Trustee with an effective Internal
Revenue Service Form W-8ECI (or successor thereto) or (B) the
transferee delivers to both the transferor and the Trustee an
Opinion of Counsel from a nationally-recognized tax counsel to the
effect that such transfer is in accordance with the requirements of
the Code and the regulations promulgated thereunder and that such
transfer of a Residual Certificate will not be disregarded for
federal income tax purposes.
(vi) Any attempted or purported transfer of any Ownership
Interest in a Residual Certificate in violation of the provisions of
this Section 6.02 shall be absolutely null and void and shall vest
no rights in the purported transferee. If any purported transferee
shall, in violation of the provisions of this Section 6.02, become a
Holder of a Residual Certificate, then the prior Holder of such
Residual Certificate that is a Permitted Transferee shall, upon
discovery that the registration of transfer of such Residual
Certificate was not in fact permitted by this Section 6.02, be
restored to all rights as Holder thereof retroactive to the date of
registration of transfer of such Residual Certificate. The Trustee
shall be under no liability to any Person for any registration of
transfer of a Residual Certificate that is in fact not permitted by
this Section 6.02 or for making any distributions due on such
Residual Certificate to the Holder thereof or taking any other
action with respect to such Holder under the provisions of the
Agreement so long as the transfer was registered in accordance with
this Section 6.02. The Trustee shall be entitled to recover from any
Holder of a Residual Certificate that was in fact not a Permitted
Transferee at the time such distributions were made all
distributions made on such Residual Certificate. Any such
distributions so recovered by the Trustee shall be distributed and
delivered by the Trustee to the prior Holder of such Residual
Certificate that is a Permitted Transferee.
(vii) If any Person other than a Permitted Transferee acquires
any Ownership Interest in a Residual Certificate in violation of the
restrictions in this Section 6.02, then the Trustee, based on
information provided to the Trustee by the Servicer, will provide to
the Internal Revenue Service, and to the Persons specified in
Section 860E(e)(3) and (6) of the Code, information needed to
compute the tax imposed under Section 860E(e) of the Code on
transfers of residual interests to disqualified organizations. The
expenses of the Trustee under this clause (vii) shall be
reimbursable by the Trust.
(viii) No Ownership Interest in a Residual Certificate shall
be acquired by a Plan or any Person acting on behalf of a Plan.
(g) [Reserved]
(h) No service charge shall be imposed for any transfer or
exchange of Certificates of any Class, but the Trustee may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange
shall be destroyed by the Certificate Registrar.
Section 6.03 Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate is surrendered to the Certificate
Registrar or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (b) there is delivered to
the Trustee, the Depositor and the Certificate Registrar such security or
indemnity reasonably satisfactory to each, to save each of them harmless, then,
in the absence of actual notice to the Trustee or the Certificate Registrar that
such Certificate has been acquired by a bona fide purchaser, the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor, Class
and Percentage Interest but bearing a number not contemporaneously outstanding.
Upon the issuance of any new Certificate under this Section, the Trustee may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee and the Certificate Registrar) connected
therewith. Any duplicate Certificate issued pursuant to this Section shall
constitute complete and indefeasible evidence of ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 6.04 Persons Deemed Owners. Prior to due presentation
of a Certificate for registration of transfer, the Depositor, the Servicer, the
Trustee, the Certificate Registrar and any agent of the Depositor, the Servicer,
the Trustee or the Certificate Registrar may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 5.01 and for all other purposes
whatsoever, and none of the Depositor, the Servicer, the Trustee, the
Certificate Registrar or any agent of the Servicer, the Trustee 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 Trustee. No such resignation by the Servicer shall
become effective until the Trustee 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 Trustee 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 Trustee or the Depositor, or to the Servicer,
the Depositor 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, 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 Trustee 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 Trustee pursuant to and under this Section 8.01, unless and
until such time as the Trustee shall appoint a successor Servicer pursuant to
Section 8.05, and, without limitation, the Trustee is hereby authorized and
empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact
or otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement of the Mortgage Loans and related documents, or otherwise,
including, without limitation, the recordation of the assignments of the
Mortgage Loans to it. The Servicer agrees to cooperate with the Trustee in
effecting the termination of the responsibilities and rights of the Servicer
hereunder, including, without limitation, the transfer to the Trustee for the
administration by it of all cash amounts that have been deposited by the
Servicer in the Servicer Custodial Account or thereafter received by the
Servicer with respect to the Mortgage Loans. Upon obtaining notice or knowledge
of the occurrence of any Event of Default, the Person obtaining such notice or
knowledge shall give prompt written notice thereof to Certificateholders at
their respective addresses appearing in the Certificate Register and to each
Rating Agency. All costs and expenses (including attorneys' fees) incurred in
connection with transferring the Mortgage Files to 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 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 involve it in 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 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 the Trustee
shall have knowledge of an Event of Default, the Trustee shall give prompt
written notice thereof to the Certificateholders.
Section 8.05 Trustee to Act; Appointment of Successor. (a)
Within 90 days of the time the Servicer receives a notice of termination
pursuant to Section 8.01, the Trustee 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, the parties hereto agree that the
Trustee, in its capacity as successor Servicer, immediately will assume all of
the obligations of the Servicer to make Advances. Notwithstanding the foregoing,
the Trustee 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. Notwithstanding anything provided herein to the contrary,
under no circumstances shall any provision of this Agreement be construed to
require the Trustee, acting in its capacity as successor to the Servicer in its
obligation to 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
Trustee shall be entitled to such compensation as the terminated Servicer would
have been entitled to hereunder if no such notice of termination had been given.
Notwithstanding the above, the Trustee may, if it shall be unwilling so to act,
or shall, if it is legally unable so to act, appoint, or petition a court of
competent jurisdiction to appoint, any established housing and home finance
institution having a net worth of not less than $10,000,000 as the successor to
the terminated Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer hereunder; provide ,
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 Trustee is prohibited
by law from so acting, the Trustee shall act in such capacity as provided above.
The Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. All
Servicing Transfer Costs shall be paid by the predecessor Servicer upon
presentation of reasonable documentation of such costs, and if such predecessor
Servicer defaults in its obligation to pay such costs, such costs shall be paid
by the successor Servicer or the Trustee (in which case the successor Servicer
or the Trustee shall be entitled to reimbursement therefor from the assets of
the Trust).
(b) In connection with the appointment of a successor Servicer
or the assumption of the duties of the Servicer, as specified in Section
8.05(a), the Trustee may make such arrangements for the compensation of such
successor, including the payment of a Supplemental Servicing Fee out of the
Collateral pledged by the predecessor Servicer pursuant to Section 3.23, as it
and such successor agree.
(c) Any successor, including the Trustee, 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 Trustee 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
Section 9.01 Duties of Trustee. (a) The Trustee, prior to the
occurrence of an Event of Default and after the curing or waiver of all Events
of Default which may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement. In case an Event of
Default has occurred of which a Responsible Officer of the Trustee shall have
actual knowledge (which has not been cured or waived), the Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and use
the same degree of care and skill in their exercise as a reasonably prudent
investor would exercise or use under the circumstances in the conduct of such
investor's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement.
(b) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own grossly negligent action, its own
grossly negligent failure to act or its own willful misfeasance; provided,
however, that:
(i) Prior to the occurrence of an Event of Default, and after
the curing or waiver of all such Events of Default which may have
occurred, the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Trustee by the Depositor or the Servicer and which on their
face, do not contradict the requirements of this Agreement;
(ii) The Trustee (in its individual capacity) shall not be
personally liable for an error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Trustee, unless
it shall be proved that the Trustee was grossly negligent in
ascertaining the pertinent facts;
(iii) The Trustee (in its individual capacity) shall not be
personally liable with respect to any action taken, suffered or
omitted to be taken by it in good faith in accordance with the
direction of Certificateholders as provided in Section 8.03;
(iv) The Trustee shall not be charged with knowledge of any
default (other than a default in payment to the Trustee) 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 obtains actual knowledge of such failure or event or
any officer of the Trustee receives written notice of such failure
or event at its Corporate Trust Office from the Servicer, the
Depositor or any Certificateholder; and
(v) Except to the extent provided in Section 8.05, no
provision in this Agreement shall require the Trustee to expend or
risk its own funds (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 hereunder, or in the exercise of any of its rights or
powers, if the Trustee shall have reasonable grounds for believing
that repayment of funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
Section 9.02 Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 9.01:
(i) The Trustee may request and rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(ii) The Trustee 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) The Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; nothing
contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default (which has
not been cured or waived), to exercise such of the rights and powers
vested in it by this Agreement, and to use the same degree of care
and skill in their exercise as a prudent investor would exercise or
use under the circumstances in the conduct of such investor's own
affairs;
(iv) The Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default which may
have occurred, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document,
unless requested in writing so to do by Holders 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 of the costs,
expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms
of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability or payment of such estimated
expenses as a condition to so proceeding; and
(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys.
Section 9.03 Trustee Not Liable for Certificates or Mortgage
Loans. The recitals contained herein and in the Certificates (other than the
execution and authentication of the Certificates) shall be taken as the
statements of the Depositor or Servicer, as applicable, and the Trustee assumes
no responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Agreement or of the Certificates or any
Mortgage Loans save that the Trustee represents that, assuming due execution and
delivery by the other parties hereto, this Agreement has been duly authorized,
executed and delivered by it and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, subject, as to
enforcement of remedies, to applicable insolvency, receivership, moratorium and
other laws affecting the rights of creditors generally, and to general
principles of equity and the discretion of the court (regardless of whether
enforcement of such remedies is considered in a proceeding in equity or at law).
The Trustee shall not be accountable for the use or application by the Depositor
of funds paid to the Depositor in consideration of the assignment of the
Mortgage Loans hereunder by the Depositor, 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.
The Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Mortgage or any Mortgage Loan, or the perfection and priority of any
Mortgage or the maintenance of any such perfection and priority or for or with
respect to the sufficiency of the Trust or its ability to generate the payments
to be distributed to Certificateholders under this Agreement, including, without
limitation: the existence, condition and ownership of any Mortgaged Property;
the existence and enforceability of any hazard insurance thereon (other than if
the Trustee shall assume the duties of the Servicer pursuant to Section 8.05 and
thereupon only for the acts or omissions of the successor Servicer); the
validity of the assignment of any Mortgage Loan to the Trustee or of any
intervening assignment; the completeness of any Mortgage Loan; the performance
or enforcement of any Mortgage Loan (other than if the Trustee shall assume the
duties of the Servicer pursuant to Section 8.05 and thereupon only for the acts
or omissions of the Trustee as successor Servicer); the compliance by the
Depositor or the Servicer with any warranty or representation made under this
Agreement or in any related document or the accuracy of any such warranty or
representation; any investment of monies by or at the direction of the Servicer
or any loss resulting therefrom, it being understood that the Trustee shall
remain responsible for any Trust property that it may hold in its individual
capacity; the acts or omissions of any of the Depositor, the Servicer (other
than if the Trustee shall assume the duties of the Servicer pursuant to Section
8.05 and thereupon only for the acts or omissions of the Trustee as successor
Servicer), any Subservicer or any Mortgagor; any action of the Servicer (other
than if the Trustee shall assume the duties of the Servicer pursuant to Section
8.05 and thereupon only for the acts or omissions of the Trustee as successor
Servicer) or any Subservicer taken in the name of the Trustee; the failure of
the Servicer or any Subservicer to act or perform any duties required of it as
agent of the Trustee hereunder; or any action by the Trustee taken at the
instruction of the Servicer (other than if the Trustee shall assume the duties
of the Servicer pursuant to Section 8.05 and thereupon only for the acts or
omissions of the Trustee as successor Servicer); provided, however, that the
foregoing shall not relieve the Trustee of its obligation to perform its duties
under this Agreement, including, without limitation, the Trustee's review of the
Mortgage Files pursuant to Section 2.02. The Trustee shall file any financing or
continuation statement in any public office at any time required to maintain the
perfection of any security interest or lien granted to it hereunder.
Section 9.04 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights it would have if it were not Trustee and may otherwise deal
with the Servicer, any Subservicer or any of their respective affiliates with
the same right it would have if it were not the Trustee.
Section 9.05 Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be (a) an institution the deposits of which are
fully insured by the FDIC and (b) a corporation or banking association organized
and doing business under the laws of the United States of America or of any
State, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or State authority and (c) with respect to
every successor trustee hereunder either an institution (i) the long-term
unsecured debt obligations of which are rated at least "A" by S&P and Fitch or
(ii) whose serving as Trustee hereunder would not result in the lowering of the
ratings originally assigned to any Class of Certificates. The Trustee shall not
be an affiliate of the Depositor or the Bank of America. 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. In case at any time the Trustee shall cease to be eligible in
accordance with the provision of this Section 9.05, the Trustee shall resign
immediately in the manner and with the effect specified in Section 9.06.
Section 9.06 Resignation and Removal of Trustee. The Trustee
may at any time resign and be discharged from the trust hereby created by giving
written notice thereof to the Servicer and mailing a copy of such notice to all
Holders of record. The Trustee shall also mail a copy of such notice of
resignation to each Rating Agency. Upon receiving such notice of resignation,
the Servicer shall use their best efforts to promptly appoint a mutually
acceptable successor Trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Trustee and one copy to the
successor Trustee. If no successor Trustee shall have been so appointed and
shall have accepted appointment within 30 days after the giving of such notice
of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 9.05 and shall fail to resign after
written request therefor by the Servicer, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Servicer may remove the Trustee and appoint a successor trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor.
The Holders of Certificates evidencing not less than 50% of
the Voting Rights may at any time remove the Trustee by written instrument or
instruments delivered to the Servicer and the Trustee; the Servicer shall
thereupon use their best efforts to appoint a mutually acceptable successor
Trustee in accordance with this Section 9.06.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 9.06 shall
become effective upon acceptance of appointment by the successor Trustee as
provided in Section 9.07.
Section 9.07 Successor Trustee. Any successor Trustee
appointed as provided in Section 9.06 shall execute, acknowledge and deliver to
the Servicer and to its predecessor Trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective and such successor Trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with like
effect as if originally named as Trustee herein. The predecessor Trustee shall
duly assign, transfer, deliver and pay over to the successor Trustee the whole
of the Mortgage Files and related documents and statements held by it hereunder,
together with all instruments of transfer and assignment or other documents
properly executed as may be reasonably required to effect such transfer and such
of the records or copies thereof maintained by the predecessor Trustee in the
administration hereof as may be reasonably requested by the successor Trustee
and shall thereupon be discharged from all duties and responsibilities under
this Agreement; provided, however, that if the predecessor Trustee has been
terminated pursuant to the third paragraph of Section 9.06, all reasonable
expenses of the predecessor Trustee incurred in complying with this Section 9.07
shall be reimbursed by the Trust.
No successor Trustee shall accept appointment as provided in
this Section 9.07 unless at the time of such appointment such successor Trustee
shall be eligible under the provisions of Section 9.05.
Upon acceptance of appointment by a successor Trustee as
provided in this Section 9.07, the Servicer shall cooperate to mail notice of
the succession of such Trustee hereunder to all Holders of Certificates at their
addresses as shown in the Certificate Register and to each Rating Agency. If the
Servicer fail to mail such notice within ten days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be mailed at the expense of the Servicer.
Section 9.08 Merger or Consolidation of Trustee. Any
corporation or banking association into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation or banking
association resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation or banking association succeeding
to all or substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, if such corporation or banking
association is eligible under the provisions of Section 9.05, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Section 9.09 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any of the provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any Mortgaged
Property may at the time be located or for any other reason, the 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.
In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 9.09, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Servicer hereunder), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
Trust Estate or any portion thereof in any such jurisdiction) shall be exercised
and performed by such separate trustee or co-trustee at the direction of the
Trustee. No trustee hereunder shall be held personally liable by reason of any
act or omission of any other trustee hereunder; provided, however, that no
appointment of a co- trustee or separate trustee hereunder shall relieve the
Trustee of its obligations hereunder.
Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article IX. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall become incapable of acting, resign or be removed, or shall
be adjudged a bankrupt or insolvent, or a receiver of its property shall be
appointed, or any public officer shall take charge or control of such trustee or
co-trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, all of its estates, properties, rights, remedies
and trusts shall vest in and be exercised by the Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
Section 9.10 Authenticating Agents. The Trustee may appoint
one or more authenticating agents ("Authenticating Agents") which shall be
authorized to act on behalf of the Trustee in authenticating Certificates.
Initially, the Authenticating Agent shall be Xxxxx Fargo Bank Minnesota,
National Association. Wherever reference is made in this Agreement to the
authentication of Certificates by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication on
behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent must be acceptable to the 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 Trustee or the Authenticating Agent.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the Servicer. The Trustee
may at any time terminate the agency of any Authenticating Agent by giving
written notice of termination to such Authenticating Agent and to the 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 Trustee 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 Trustee's Fees and Expenses. The Trustee, as
compensation for its activities hereunder, shall be entitled to receive on each
Distribution Date an amount equal to the Trustee Fee for such Distribution Date
pursuant to Section 5.02(a). The Trustee and any director, officer, employee or
agent of the Trustee shall be indemnified by the Trust and held harmless against
any loss, liability or expense (including reasonable attorney's fees) (a)
incurred in connection with any claim or legal action relating to (i) this
Agreement, (ii) the Certificates, or (iii) the performance of any of the
Trustee's duties hereunder, other than any loss, liability or expense incurred
by reason of willful misfeasance, bad faith or gross negligence in the
performance of any of the Trustee's duties hereunder, (b) resulting from any tax
or information return which was prepared by, or should have been prepared by,
the Servicer and (c) arising out of the transfer of any Private Certificate or
Residual Certificate not in compliance with ERISA. Such indemnity shall survive
the termination of this Agreement or the resignation or removal of the Trustee
hereunder. Without limiting the foregoing, except as otherwise agreed upon in
writing by the Depositor and the Trustee, and except for any such expense,
disbursement or advance as may arise from the Trustee's gross negligence, bad
faith or willful misconduct, the Trust shall reimburse the Trustee for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Agreement to the extent
permitted by Treasury Regulations Section 1.860G-1(b)(3)(ii) and (iii);
provided, however, that the Depositor and the Trustee intend to enter into a
separate agreement for custody-related services. Except as otherwise provided
herein, the Trustee shall not be entitled to payment or reimbursement for any
routine ongoing expenses incurred by the Trustee in the ordinary course of its
duties as Trustee, Certificate Registrar or Paying Agent hereunder or for any
other expenses.
Section 9.12 Appointment of Custodian. The Trustee may at any
time on or after the Closing Date, with the consent of the Depositor and the
Servicer, appoint one or more Custodians to hold all or a portion of the
Mortgage Files as agent for the Trustee, by entering into a custodial agreement
in a form acceptable to the Depositor and the Servicer. Subject to this Article
IX, the Trustee agrees to comply with the terms of each Custodial Agreement and
to enforce the terms and provisions thereof against the Custodian for the
benefit of the Certificateholders. Each Custodian shall be a depository
institution subject to supervision by federal or state authority, shall have a
combined capital and surplus of at least $10,000,000 and shall be qualified to
do business in the jurisdiction in which it holds any Mortgage File.
Section 9.13 Paying Agents. The Trustee may appoint one or
more Paying Agents (each, a "Paying Agent") which shall be authorized to act on
behalf of the Trustee in making withdrawals from the 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 Trustee, such reference shall be deemed to include
such a withdrawal on behalf of the Trustee by a Paying Agent. Initially, the
Paying Agent shall be Xxxxx Fargo Bank Minnesota, National Association. Whenever
reference is made in this Agreement to a distribution by the Trustee or the
furnishing of a statement to Certificateholders by the Trustee, such reference
shall be deemed to include such a distribution or furnishing on behalf of the
Trustee by a Paying Agent. Each Paying Agent shall provide to the Trustee such
information concerning the Certificate Account as the Trustee 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) a principal office and place of business in New
York, New York, having a combined capital and surplus of at least $15,000,000,
authorized under such laws to do a trust business and subject to supervision or
examination by federal or state authorities.
Any corporation into which any Paying Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Paying Agent shall be
a party, or any corporation succeeding to the corporate agency business of any
Paying Agent, shall continue to be the Paying Agent provided that such
corporation after the consummation of such merger, conversion, consolidation or
succession meets the eligibility requirements of this Section 9.13.
Any Paying Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Servicer; provided that the
Paying Agent has returned to the Certificate Account or otherwise accounted, to
the reasonable satisfaction of the Trustee, for all amounts it has withdrawn
from the Certificate Account. The Trustee 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 Trustee 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 Trustee shall remain liable
for any duties and obligations assumed by its appointed Paying Agent.
Section 9.14 Limitation of Liability. The Certificates are
executed by the Trustee, not in its individual capacity but solely as Trustee of
the Trust, in the exercise of the powers and authority conferred and vested in
it by this Agreement. Each of the undertakings and agreements made on the part
of the Trustee in the Certificates is made and intended not as a personal
undertaking or agreement by the Trustee but is made and intended for the purpose
of binding only the Trust.
Section 9.15 Trustee May Enforce Claims Without Possession of
Certificates. All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and such preceding instituted by the Trustee shall
be brought in its own name or in its capacity as Trustee. Any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursement and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Certificateholders in respect of which such
judgment has been recovered.
Section 9.16 Suits for Enforcement. In case an Event of
Default or other default by the Servicer or the Depositor hereunder shall occur
and be continuing, the Trustee, in its discretion, may proceed to protect and
enforce its rights and the rights of the Holders of Certificates under this
Agreement by a suit, action or proceeding in equity or at law or otherwise,
whether for the specific performance of any covenant or agreement contained in
this Agreement or in aid of the execution of any power granted in this Agreement
or for the enforcement of any other legal, equitable or other remedy, as the
Trustee, being advised by counsel, shall deem most effectual to protect and
enforce any of the rights of the Trustee and the Certificateholders.
Section 9.17 Waiver of Bond Requirement. The Trustee shall be
relieved of, and each Certificateholder hereby waives, any requirement of any
jurisdiction in which the Trust, or any part thereof, may be located that the
Trustee post a bond or other surety with any court, agency or body whatsoever.
Section 9.18 Waiver of Inventory, Accounting and Appraisal
Requirement. The Trustee shall be relieved of, and each Certificateholder hereby
waives, any requirement of any jurisdiction in which the Trust, or any part
thereof, may be located that the Trustee file any inventory, accounting or
appraisal of the Trust with any court, agency or body at any time or in any
manner whatsoever.
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase by the Depositor or
Liquidation of All Mortgage Loans . Subject to Section 10.02, the respective
obligations and responsibilities of the Depositor, the Servicer and the Trustee
created hereby (other than the obligation of the Trustee to make certain
payments to Certificateholders after the Final Distribution Date and to send
certain notices as hereinafter set forth and the obligations of the Trustee
pursuant to Sections 5.04(b) and 5.05(b)) shall terminate upon the last action
required to be taken by the Trustee on the Final Distribution Date pursuant to
this Article X following the earlier of (a) the purchase by the Depositor of all
Mortgage Loans and all REO Property 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), (ii) the fair market value of such REO
Property, plus any Class Unpaid Interest Shortfall for any Class of Certificates
and Component Unpaid Interest Shortfall for any Component 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) and (iii) any Reimbursement Amount owed to the Trust pursuant to
Section 2.04 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.
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 Depositor to repurchase all of the Mortgage
Loans is conditioned upon (A) the aggregate Stated Principal Balance of the
Mortgage Loans as of such Final Distribution Date being less than 10% of the
aggregate Cut-off Date Principal Balance and (B) the sum of clause (a)(i) and
(ii) of the second preceding paragraph being less than or equal to the aggregate
fair market value of the Mortgage Loans (other than any Mortgage Loan as to
which REO Property has been acquired) and the REO Properties; provided, however,
that this clause (B) shall not apply to any purchase by the Depositor if, at the
time of the purchase, the Depositor is no longer subject to regulation by the
OCC, the FDIC, the Federal Reserve or the OTS. Fair market value for purposes of
this paragraph and the second preceding paragraph will be determined by the
Depositor 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. If such
right is exercised, the Trustee 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 Trustee for
payment of the final distribution and for cancellation, shall be given promptly
by the Depositor (if exercising its right to purchase the assets of the Trust)
or by the Trustee (in any other case) by letter to Certificateholders mailed not
earlier than the 15th day and not later than the 25th 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
Trustee therein designated, (2) the amount of any such final payment and (3)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office or agency of the Trustee therein specified. If the
Depositor is obligated to give notice to Certificateholders as aforesaid, it
shall give such notice to the Trustee and the Certificate Registrar at the time
such notice is given to Certificateholders. In the event such notice is given by
the Depositor, the Depositor 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 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. Not less than five (5) Business Days prior to the
Final Distribution Date, the Trustee shall notify the Depositor of the amount of
any unpaid Reimbursement Amount owed to the Trust.
Upon presentation and surrender of the Certificates, the
Trustee 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 applicable
Ratio Strip Deferred Amount with respect to the Class A-P Components, and (II)
as to the Class 1-A-R and 1-A-LR Certificates, the amounts, if any, which remain
on deposit in the Certificate Account (and are deemed to be on deposit in the
Upper-Tier Certificate Sub-Account) (other than the amounts retained to meet
claims) after application pursuant to clause (I) above. An amount shall be
distributed in respect of interest and principal to the Uncertificated
Lower-Tier Interests in the same manner as principal and interest are
distributed to the Uncertificated Lower-Tier Interests as provided in Section
5.02.
If all of the Certificateholders do not surrender their
Certificates for final payment and cancellation on or before the Final
Distribution Date, the Trustee shall on such date cause all funds in the
Certificate Account not distributed in final distribution to Certificateholders
of such Group to continue to be held by the Trustee in an Eligible Account for
the benefit of such Certificateholders and the Depositor (if it exercised its
right to purchase the assets of the Trust Estate) or the Trustee (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
applicable Certificates shall not have been surrendered for cancellation, the
Trustee may take appropriate steps, or may appoint an agent to take appropriate
steps, to contact the remaining 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
Depositor exercises its purchase option as provided in Section 10.01, the Trust
shall be terminated in accordance with the following additional requirements,
unless the Trustee has received an Opinion of Counsel to the effect that the
failure of the Trust to comply with the requirements of this Section 10.02 will
not (i) result in the imposition of taxes on "prohibited transactions" of the
Trust as defined in Section 860F of the Code, or (ii) cause the Trust Estate to
fail to qualify as two separate REMICs 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
Trustee shall sell all of the assets of the Trust Estate to the
Depositor for cash; and
(ii) the notice given by the Depositor or the Trustee pursuant
to Section 10.01 shall provide that such notice constitutes the
adopting of a plan of complete liquidation of the Upper-Tier REMIC
and the Lower-Tier REMIC as of the date of such notice (or, if
earlier, the date on which such notice was mailed to
Certificateholders). The Trustee shall also specify such date in the
final tax returns of the Upper-Tier REMIC and the Lower-Tier REMIC.
(b) By their acceptance of the Residual Certificates, the
Holders thereof hereby agree to take such other action in connection with such
plan of complete liquidation as may be reasonably requested by the Depositor.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment. This Agreement may be amended from
time to time by the Depositor, the Servicer and the Trustee 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 Upper-Tier REMIC and the Lower-Tier REMIC as REMICs at all
times that any Certificates are outstanding or to avoid or minimize the risk of
the imposition of any tax on any REMIC pursuant to the Code that would be a
claim against the Trust Estate, provided that (a) the Trustee has received an
Opinion of Counsel to the effect that such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of the imposition
of any such tax and (b) such action shall not, as evidenced by such Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder, (iv) to change the timing and/or nature of deposits into the
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 Class A 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 reduce the percentage of the
aggregate Stated Principal Balance of the Mortgage Loans at which the Depositor
will have the option to purchase all the remaining Mortgage Loans in accordance
with Section 10.01, provided that such reduction is considered necessary by the
Depositor, as evidenced by an Officer's Certificate delivered to the Trustee, to
preserve the treatment of the transfer of the Mortgage Loans to the Depositor by
the Seller or to the Trust by the Depositor as sale for accounting purposes, and
(vi) to make any other provisions with respect to matters or questions arising
under this Agreement which shall not be materially inconsistent with the
provisions of this Agreement, provided that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interests
of any Certificateholder, provided that the amendment shall not be deemed to
adversely affect in any material respect the interests of the Certificateholders
and no Opinion of Counsel to that effect shall be required if the Person
requesting the amendment obtains a letter from each Rating Agency stating that
the amendment would not result in the downgrading or withdrawal of the
respective ratings then assigned to the Certificates.
This Agreement may also be amended from time to time by the
Depositor, the Servicer and the Trustee, with the consent of the 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 with an Opinion of Counsel stating whether such amendment
would adversely affect the qualification of the Upper-Tier REMIC or the
Lower-Tier REMIC as REMICs 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 Upper-Tier REMIC or the
Lower-Tier REMIC as REMICs.
Promptly after the execution of any such amendment or consent
the Trustee shall furnish written notification of the substance of or a copy of
such amendment to each Certificateholder and to each Rating Agency.
It shall not be necessary for the consent of
Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable requirements as the Trustee may prescribe.
Section 11.02 Recordation of Agreement. 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 Trustee, 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 Trustee 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 Trustee a
written notice of default and of the continuance thereof, as provided herein,
and unless also the Holders of Certificates evidencing Percentage Interests
aggregating not less than 25% of each Class of Certificates affected thereby
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding; it being
understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner whatever
by virtue or by availing itself or themselves of any provisions of this
Agreement to affect, disturb or prejudice the rights of the Holders of any other
of the Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder, or to enforce any right under this Agreement, except
in the manner herein provided and for the equal, ratable and common benefit of
all Certificateholders. For the protection and enforcement of the provisions of
this Section 11.03, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 11.04 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT APPLICATION OF THE
CONFLICTS OF LAWS PROVISIONS THEREOF, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.05 Notices. All demands, notices, instructions,
directions, requests and communications required to be delivered hereunder shall
be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by certified mail, return receipt requested, (provided,
however, that notices to the Trustee may be delivered by facsimile and shall be
deemed effective upon receipt ) to (a) in the case of the Depositor, Banc of
America Mortgage Securities, Inc., 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: General Counsel and Chief Financial Officer, (b) in
the case of the Servicer, Bank of America, N.A., 000 Xxxx Xxxx Xxxxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Servicing Manager, with a copy
to: Bank of America, N.A. 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000, Attention: General Counsel and Chief Financial Officer, (c) in the case
of the Trustee, Xxxxx Fargo Bank Minnesota, National Association, X.X. Xxx 00,
Xxxxxxxx, Xxxxxxxx 00000, Attention: BOAMS, Series 2003-F, and for overnight
delivery purposes, Xxxxx Fargo Bank Minnesota, National Association, 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: BOAMS, Series 2003-F,
with a copy to Xxxxx Fargo Bank Minnesota, National Association, Sixth and
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, 00000, Attention: BOAMS, Series
2003-F, (d) Fitch, Fitch Ratings, Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attn: Residential Mortgage Surveillance Group and (e) in the case of 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; 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 so mailed within the time prescribed in this Agreement
shall be conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
Section 11.06 Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 11.07 Certificates Nonassessable and Fully Paid. It is
the intention of the Trustee that Certificateholders shall not be personally
liable for obligations of the Trust Estate, that the beneficial ownership
interests represented by the Certificates shall be nonassessable for any losses
or expenses of the Trust Estate or for any reason whatsoever, and that
Certificates upon execution, authentication and delivery thereof by the Trustee
pursuant to Section 6.01 are and shall be deemed fully paid.
Section 11.08 Access to List of Certificateholders. The
Certificate Registrar will furnish or cause to be furnished to the Trustee,
within 15 days after the receipt of a request by the Trustee in writing, a list,
in such form as the Trustee may reasonably require, of the names and addresses
of the Certificateholders as of the most recent Record Date for payment of
distributions to Certificateholders.
If three or more Certificateholders apply in writing to the
Trustee, and such application states that the applicants desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates and is accompanied by a copy of the communication
which such applicants propose to transmit, then the Trustee shall, within five
Business Days after the receipt of such application, afford such applicants
access during normal business hours to the most recent list of
Certificateholders held by the Trustee. If such a list is as of a date more than
90 days prior to the date of receipt of such applicants' request, the Trustee
shall promptly request from the Certificate Registrar a current list as provided
above, and shall afford such applicants access to such list promptly upon
receipt.
Every Certificateholder, by receiving and holding such list,
agrees with the Certificate Registrar and the Trustee that neither the
Certificate Registrar nor the Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 11.09 Recharacterization. The parties to this
Agreement intend the conveyance by the Depositor to the Trustee of all of its
right, title and interest in and to the Mortgage Loans pursuant to this
Agreement to constitute a purchase and sale and not a loan. Notwithstanding the
foregoing, to the extent that such conveyance is held not to constitute a sale
under applicable law, it is intended that this Agreement shall constitute a
security agreement under applicable law and that the Depositor shall be deemed
to have granted to the Trustee a first priority security interest in all of the
Depositor's right, title and interest in and to the Mortgage Loans.
IN WITNESS WHEREOF, the Depositor, the Servicer and the
Trustee have caused this Agreement to be duly executed by their respective
officers thereunto duly authorized to be hereunto affixed, all as of the day and
year first above written.
BANC OF AMERICA MORTGAGE SECURITIES, INC.,
as Depositor
By:
---------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
BANK OF AMERICA, N.A.,
as Servicer
By:
---------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Vice President
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
)
On the 24th day of June, 2003, before me, a notary public in
and for the State of Maryland, personally appeared Xxxxx Xxxxxx, known to me
who, being by me duly sworn, did depose and say that he is an Assistant Vice
President of Xxxxx Fargo Bank Minnesota, National Association, a national
banking association, one of the parties that executed the foregoing instrument;
and that he signed his name thereto by order of the Board of Directors of such
association.
---------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
)
On the 24th day of June, 2003, before me, a notary public in
and for the State of North Carolina, personally appeared Xxxx Xxxxxx, known to
me who, being by me duly sworn, did depose and say that she is the Vice
President of Banc of America Mortgage Securities, Inc. 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.
---------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
)
On the 24th day of June, 2003, before me, a notary public in
and for the State of North Carolina, personally appeared Xxxxxx X. XxXxxxxxx,
known to me who, being by me duly sworn, did depose and say that he is the
Senior Vice President of Bank of America, N.A., a national banking association,
one of the parties that executed the foregoing instrument; and that he signed
her name thereto by order of the Board of Directors of such association.
---------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________.
EXHIBIT A-1-A-1
[FORM OF FACE OF CLASS 1-A-1 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class 1-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class 1-A-1
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: June 1, 2003
First Distribution Date: July 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $238,032,000.00
Pass-Through Rate: Variable
CUSIP No.: 05948X KL 4
ISIN No.: US05948XKL46
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 Mortgage Securities, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated June 24, 2003 (the "Pooling
and Servicing Agreement"), among the Depositor, Bank of America, N.A., as
servicer (the "Servicer"), and Xxxxx Fargo Bank Minnesota, 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 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.
For each Distribution Date occurring prior to and including the
Distribution Date in March 2006, interest will accrue at a rate equal to 2.969%
per annum. For each Distribution Date occurring after the Distribution Date in
March 2006 and prior to the Distribution Date in June 2006, interest will accrue
at a per annum rate equal to the Adjusted Net WAC of the Group 1 Mortgage Loans.
For each Distribution Date occurring on and after the Distribution Date in June
2006, interest will accrue at a per annum rate equal to the weighted average of
the Net Mortgage Interest Rates of the Group 1 Mortgage Loans (based on the
Stated Principal Balances of the Group 1 Mortgage Loans on the Due Date in the
month preceding the month of such Distribution Date).
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT A-1-A-2
[FORM OF FACE OF CLASS 1-A-2 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class 1-A-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
AFTER THE SENIOR CREDIT SUPPORT DEPLETION DATE, THE PRINCIPAL PORTION
OF REALIZED LOSSES ALLOCATED TO THE CLASS 1-A-1 CERTIFICATES WILL BE BORNE BY
THE CLASS 1-A-2 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class 1-A-2
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: June 1, 2003
First Distribution Date: July 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $6,731,000.00
Pass-Through Rate: Variable
CUSIP No.: 05948X KM 2
ISIN No.: US05948XKM29
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 Mortgage Securities, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated June 24, 2003 (the "Pooling
and Servicing Agreement"), among the Depositor, Bank of America, N.A., as
servicer (the "Servicer"), and Xxxxx Fargo Bank Minnesota, 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 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.
For each Distribution Date occurring prior to and including the
Distribution Date in March 2006, interest will accrue at a rate equal to 2.969%
per annum. For each Distribution Date occurring after the Distribution Date in
March 2006 and prior to the Distribution Date in June 2006, interest will accrue
at a per annum rate equal to the Adjusted Net WAC of the Group 1 Mortgage Loans.
For each Distribution Date occurring on and after the Distribution Date in June
2006, interest will accrue at a per annum rate equal to the weighted average of
the Net Mortgage Interest Rates of the Group 1 Mortgage Loans (based on the
Stated Principal Balances of the Group 1 Mortgage Loans on the Due Date in the
month preceding the month of such Distribution Date).
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT A-1-A-R
[FORM OF FACE OF CLASS 1-A-R CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class 1-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 1-A-R CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW WHICH IS SIMILAR
TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), OR A PERSON ACTING ON BEHALF OF
OR INVESTING ASSETS OF A PLAN.
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN TAX RELATED TRANSFER
RESTRICTIONS DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT. ANY
ATTEMPTED OR PURPORTED TRANSFER OF THIS CLASS 1-A-R CERTIFICATE IN VIOLATION OF
SUCH RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN
THE PURPORTED TRANSFEREE.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class 1-A-R
evidencing a 100% Percentage Interest in the distributions allocable to the
Certificate of the above-referenced Class with respect to a Trust consisting
primarily of three loan groups of adjustable interest rate mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: June 1, 2003
First Distribution Date: July 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $50.00
Initial Class Certificate
Balance of this Class: $50.00
Pass-Through Rate: Variable
CUSIP No.: 05948X KN 0
ISIN No.: US05948XKN02
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 Mortgage Securities, Inc. (the "Depositor"). The Trust was
created pursuant to a Pooling and Servicing Agreement, dated June 24, 2003 (the
"Pooling and Servicing Agreement"), among the Depositor, Bank of America, N.A.,
as servicer (the "Servicer"), and Xxxxx Fargo Bank Minnesota, 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 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.
For each Distribution Date occurring prior to and including the
Distribution Date in March 2006, interest will accrue at a rate equal to 2.969%
per annum. For each Distribution Date occurring after the Distribution Date in
March 2006 and prior to the Distribution Date in June 2006, interest will accrue
at a per annum rate equal to the Adjusted Net WAC of the Group 1 Mortgage Loans.
For each Distribution Date occurring on and after the Distribution Date in June
2006, interest will accrue at a per annum rate equal to the weighted average of
the Net Mortgage Interest Rates of the Group 1 Mortgage Loans (based on the
Stated Principal Balances of the Group 1 Mortgage Loans on the Due Date in the
month preceding the month of such Distribution Date).
Any distribution of the proceeds of any remaining assets of the
Certificate Account will be made only upon presentment and surrender of this
Class 1-A-R Certificate at the Corporate Trust Office.
Each Person who has or who acquires this Class 1-A-R Certificate
shall be deemed by the acceptance or acquisition thereof to have agreed to be
bound by the following provisions and the rights of each Person acquiring this
Class 1-A-R Certificate are expressly subject to the following provisions: (i)
each Person holding or acquiring this Class 1-A-R Certificate shall be a
Permitted Transferee and shall promptly notify the Trustee of any change or
impending change in its status as a Permitted Transferee; (ii) no Person shall
acquire an ownership interest in this Class 1-A-R Certificate unless such
ownership interest is a pro rata undivided interest; (iii) in connection with
any proposed transfer of this Class 1-A-R Certificate, the Trustee shall require
delivery to it, in form and substance satisfactory to it, of an affidavit in the
form of Exhibit I to the Pooling and Servicing Agreement; (iv) notwithstanding
the delivery of an affidavit by a proposed transferee under clause (iii) above,
if a Responsible Officer of the Trustee has actual knowledge that the proposed
transferee is not a Permitted Transferee, no transfer of any Ownership Interest
in this Class 1-A-R Certificate to such proposed transferee shall be effected;
(v) this Class 1-A-R Certificate may not be purchased by or transferred to any
Person that is not a U.S. Person, unless (A) such Person holds this Class 1-A-R
Certificate in connection with the conduct of a trade or business within the
United States and furnishes the transferor and the Trustee with an effective
Internal Revenue Service Form W-8ECI (or any successor thereto) or (B) the
transferee delivers to both the transferor and the Trustee an Opinion of Counsel
from a nationally-recognized tax counsel to the effect that such transfer is in
accordance with the requirements of the Code and the regulations promulgated
thereunder and that such transfer of this Class 1-A-R Certificate will not be
disregarded for federal income tax purposes; (vi) any attempted or purported
transfer of this Class 1-A-R Certificate in violation of the provisions of such
restrictions shall be absolutely null and void and shall vest no rights in the
purported transferee; and (vii) if any Person other than a Permitted Transferee
acquires the Class 1-A-R Certificate in violation of such restrictions, then the
Trustee, based on information provided to the Trustee by the Servicer, will
provide to the Internal Revenue Service, and to the Persons specified in Section
860E(e)(3) and (6) of the Code, information needed to compute the tax imposed
under Section 860E(e) of the Code on transfers of residual interests to
disqualified organizations.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT 1-A-LR
[FORM OF FACE OF CLASS 1-A-LR CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class 1-A-LR
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 1-A-LR CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW WHICH IS SIMILAR
TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), OR A PERSON ACTING ON BEHALF OF
OR INVESTING ASSETS OF A PLAN.
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN TAX RELATED TRANSFER
RESTRICTIONS DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT. ANY
ATTEMPTED OR PURPORTED TRANSFER OF THIS CLASS 1-A-LR CERTIFICATE IN VIOLATION OF
SUCH RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN
THE PURPORTED TRANSFEREE.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class 1-A-LR
evidencing a 100% Percentage Interest in the distributions allocable to the
Certificate of the above-referenced Class with respect to a Trust consisting
primarily of three loan groups of adjustable interest rate mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: June 1, 2003
First Distribution Date: July 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $50.00
Initial Class Certificate
Balance of this Class: $50.00
Pass-Through Rate: Variable
CUSIP No.: 05948X KP 5
ISIN No.: US05948XKP59
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 Mortgage Securities, Inc. (the "Depositor"). The Trust was
created pursuant to a Pooling and Servicing Agreement, dated June 24, 2003 (the
"Pooling and Servicing Agreement"), among the Depositor, Bank of America, N.A.,
as servicer (the "Servicer"), and Xxxxx Fargo Bank Minnesota, 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 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.
For each Distribution Date occurring prior to and including the
Distribution Date in March 2006, interest will accrue at a rate equal to 2.969%
per annum. For each Distribution Date occurring after the Distribution Date in
March 2006 and prior to the Distribution Date in June 2006, interest will accrue
at a per annum rate equal to the Adjusted Net WAC of the Group 1 Mortgage Loans.
For each Distribution Date occurring on and after the Distribution Date in June
2006, interest will accrue at a per annum rate equal to the weighted average of
the Net Mortgage Interest Rates of the Group 1 Mortgage Loans (based on the
Stated Principal Balances of the Group 1 Mortgage Loans on the Due Date in the
month preceding the month of such Distribution Date).
Any distribution of the proceeds of any remaining assets of the
Certificate Account will be made only upon presentment and surrender of this
Class 1-A-LR Certificate at the Corporate Trust Office.
Each Person who has or who acquires this Class 1-A-LR Certificate
shall be deemed by the acceptance or acquisition thereof to have agreed to be
bound by the following provisions and the rights of each Person acquiring this
Class 1-A-LR Certificate are expressly subject to the following provisions: (i)
each Person holding or acquiring this Class 1-A-LR Certificate shall be a
Permitted Transferee and shall promptly notify the Trustee of any change or
impending change in its status as a Permitted Transferee; (ii) no Person shall
acquire an ownership interest in this Class 1-A-LR Certificate unless such
ownership interest is a pro rata undivided interest; (iii) in connection with
any proposed transfer of this Class 1-A-LR Certificate, the Trustee shall
require delivery to it, in form and substance satisfactory to it, of an
affidavit in the form of Exhibit I to the Pooling and Servicing Agreement; (iv)
notwithstanding the delivery of an affidavit by a proposed transferee under
clause (iii) above, if a Responsible Officer of the Trustee has actual knowledge
that the proposed transferee is not a Permitted Transferee, no transfer of any
Ownership Interest in this Class 1-A-LR Certificate to such proposed transferee
shall be effected; (v) this Class 1-A-LR Certificate may not be purchased by or
transferred to any Person that is not a U.S. Person, unless (A) such Person
holds this Class 1-A-LR Certificate in connection with the conduct of a trade or
business within the United States and furnishes the transferor and the Trustee
with an effective Internal Revenue Service Form W-8ECI (or any successor
thereto) or (B) the transferee delivers to both the transferor and the Trustee
an Opinion of Counsel from a nationally-recognized tax counsel to the effect
that such transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of this Class 1-A-LR
Certificate will not be disregarded for federal income tax purposes; (vi) any
attempted or purported transfer of this Class 1-A-LR Certificate in violation of
the provisions of such restrictions shall be absolutely null and void and shall
vest no rights in the purported transferee; and (vii) if any Person other than a
Permitted Transferee acquires the Class 1-A-LR Certificate in violation of such
restrictions, then the Trustee, based on information provided to the Trustee by
the Servicer, will provide to the Internal Revenue Service, and to the Persons
specified in Section 860E(e)(3) and (6) of the Code, information needed to
compute the tax imposed under Section 860E(e) of the Code on transfers of
residual interests to disqualified organizations.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT A-2-A-1
[FORM OF FACE OF CLASS 2-A-1 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class 2-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class 2-A-1
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: June 1, 2003
First Distribution Date: July 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $223,650,000.00
Pass-Through Rate: Variable
CUSIP No.: 05948X KQ 3
ISIN No.: US05948XKQ33
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 Mortgage Securities, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated June 24, 2003 (the "Pooling
and Servicing Agreement"), among the Depositor, Bank of America, N.A., as
servicer (the "Servicer"), and Xxxxx Fargo Bank Minnesota, 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 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.
For each Distribution Date occurring prior to and including the
Distribution Date in February 2008, interest will accrue at a rate equal to
3.734% per annum. For each Distribution Date occurring after the Distribution
Date in February 2008 and prior to the Distribution Date in June 2008, interest
will accrue at a per annum rate equal to the Adjusted Net WAC of the Group 2
Mortgage Loans plus 0.0950659%. For each Distribution Date occurring on and
after the Distribution Date in June 2008, interest will accrue at a per annum
rate equal to the weighted average of the Net Mortgage Interest Rates of the
Group 2 Mortgage Loans (based on the Stated Principal Balances of the Group 2
Mortgage Loans on the Due Date in the month preceding the month of such
Distribution Date).
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT A-2-A-2
[FORM OF FACE OF CLASS 2-A-2 CERTIFICATE]
BANC OF AMERICA
MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class 2-A-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class 2-A-2
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: June 1, 2003
First Distribution Date: July 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $50,000,000.00
Pass-Through Rate: Variable
CUSIP No.: 05948X KR 1
ISIN No.: US05948XKR16
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 Mortgage Securities, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated June 24, 2003 (the "Pooling
and Servicing Agreement"), among the Depositor, Bank of America, N.A., as
servicer (the "Servicer"), and Xxxxx Fargo Bank Minnesota, 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 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.
For each Distribution Date occurring prior to and including the
Distribution Date in February 2008, interest will accrue at a rate equal to
4.237% per annum. For each Distribution Date occurring after the Distribution
Date in February 2008 and prior to the Distribution Date in June 2008, interest
will accrue at a per annum rate equal to the Adjusted Net WAC of the Group 2
Mortgage Loans plus 0.5980659%. For each Distribution Date occurring on and
after the Distribution Date in June 2008, interest will accrue at a per annum
rate equal to the weighted average of the Net Mortgage Interest Rates of the
Group 2 Mortgage Loans (based on the Stated Principal Balances of the Group 2
Mortgage Loans on the Due Date in the month preceding the month of such
Distribution Date).
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT A-2-A-3
[FORM OF FACE OF CLASS 2-A-3 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class 2-A-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class 2-A-3
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: June 1, 2003
First Distribution Date: July 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $290,184,000.00
Pass-Through Rate: Variable
CUSIP No.: 05948X KS 9
ISIN No.: US05948XKS98
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 Mortgage Securities, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated June 24, 2003 (the "Pooling
and Servicing Agreement"), among the Depositor, Bank of America, N.A., as
servicer (the "Servicer"), and Xxxxx Fargo Bank Minnesota, 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 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.
For each Distribution Date occurring prior to and including the
Distribution Date in February 2008, interest will accrue at a rate equal to
3.419% per annum. For each Distribution Date occurring after the Distribution
Date in February 2008 and prior to the Distribution Date in June 2008, interest
will accrue at a per annum rate equal to the Adjusted Net WAC of the Group 2
Mortgage Loans minus 0.2199341%. For each Distribution Date occurring on and
after the Distribution Date in June 2008, interest will accrue at a per annum
rate equal to the weighted average of the Net Mortgage Interest Rates of the
Group 2 Mortgage Loans (based on the Stated Principal Balances of the Group 2
Mortgage Loans on the Due Date in the month preceding the month of such
Distribution Date).
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT A-2-A-4
[FORM OF FACE OF CLASS 2-A-4 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class 2-A-4
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE 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 MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class 2-A-4
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: June 1, 2003
First Distribution Date: July 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $30,000,000.00
Pass-Through Rate: Variable
CUSIP No.: 05948X KT 7
ISIN No.: US05948XKT71
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 Mortgage Securities, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated June 24, 2003 (the "Pooling
and Servicing Agreement"), among the Depositor, Bank of America, N.A., as
servicer (the "Servicer"), and Xxxxx Fargo Bank Minnesota, 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 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.
For each Distribution Date occurring prior to and including the
Distribution Date in February 2008, interest will accrue at a rate equal to
3.419% per annum. For each Distribution Date occurring after the Distribution
Date in February 2008 and prior to the Distribution Date in June 2008, interest
will accrue at a per annum rate equal to the Adjusted Net WAC of the Group 2
Mortgage Loans minus 0.2199341%. For each Distribution Date occurring on and
after the Distribution Date in June 2008, interest will accrue at a per annum
rate equal to the weighted average of the Net Mortgage Interest Rates of the
Group 2 Mortgage Loans (based on the Stated Principal Balances of the Group 2
Mortgage Loans on the Due Date in the month preceding the month of such
Distribution Date).
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT A-2-A-5
[FORM OF FACE OF CLASS 2-A-5 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class 2-A-5
[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 MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class 2-A-5
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: June 1, 2003
First Distribution Date: July 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $100,000,000.00
Pass-Through Rate: Variable
CUSIP No.: 05948X KU 4
ISIN No.: US05948XKU45
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 Mortgage Securities, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated June 24, 2003 (the "Pooling
and Servicing Agreement"), among the Depositor, Bank of America, N.A., as
servicer (the "Servicer"), and Xxxxx Fargo Bank Minnesota, 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 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.
For each Distribution Date occurring prior to and including the
Distribution Date in February 2008, interest will accrue at a rate equal to
3.828% per annum. For each Distribution Date occurring after the Distribution
Date in February 2008 and prior to the Distribution Date in June 2008, interest
will accrue at a per annum rate equal to the Adjusted Net WAC of the Group 2
Mortgage Loans plus 0.1890659%. For each Distribution Date occurring on and
after the Distribution Date in June 2008, interest will accrue at a per annum
rate equal to the weighted average of the Net Mortgage Interest Rates of the
Group 2 Mortgage Loans (based on the Stated Principal Balances of the Group 2
Mortgage Loans on the Due Date in the month preceding the month of such
Distribution Date).
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT A-2-A-6
[FORM OF FACE OF CLASS 2-A-6 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class 2-A-6
[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.
AFTER THE SENIOR CREDIT SUPPORT DEPLETION DATE, THE PRINCIPAL PORTION OF
REALIZED LOSSES ALLOCATED TO THE CLASS 2-A-4 CERTIFICATES WILL BE BORNE BY THE
CLASS 2-A-6 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class 2-A-6
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: June 1, 2003
First Distribution Date: July 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $849,000.00
Pass-Through Rate: Variable
CUSIP No.: 05948X KV 2
ISIN No.: US05948XKV28
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 Mortgage Securities, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated June 24, 2003 (the "Pooling
and Servicing Agreement"), among the Depositor, Bank of America, N.A., as
servicer (the "Servicer"), and Xxxxx Fargo Bank Minnesota, 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 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.
For each Distribution Date occurring prior to and including the
Distribution Date in February 2008, interest will accrue at a rate equal to
3.419% per annum. For each Distribution Date occurring after the Distribution
Date in February 2008 and prior to the Distribution Date in June 2008, interest
will accrue at a per annum rate equal to the Adjusted Net WAC of the Group 2
Mortgage Loans minus 0.2199341%. For each Distribution Date occurring on and
after the Distribution Date in June 2008, interest will accrue at a per annum
rate equal to the weighted average of the Net Mortgage Interest Rates of the
Group 2 Mortgage Loans (based on the Stated Principal Balances of the Group 2
Mortgage Loans on the Due Date in the month preceding the month of such
Distribution Date).
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT A-2-A-7
[FORM OF FACE OF CLASS 2-A-7 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class 2-A-7
[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.
AFTER THE SENIOR CREDIT SUPPORT DEPLETION DATE, THE PRINCIPAL PORTION OF
REALIZED LOSSES ALLOCATED TO THE CLASS 2-A-5 CERTIFICATES WILL BE BORNE BY THE
CLASS 2-A-7 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class 2-A-7
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: June 1, 2003
First Distribution Date: July 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $2,828,000.00
Pass-Through Rate: Variable
CUSIP No.: 05948X KW 0
ISIN No.: US05948XKW01
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 Mortgage Securities, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated June 24, 2003 (the "Pooling
and Servicing Agreement"), among the Depositor, Bank of America, N.A., as
servicer (the "Servicer"), and Xxxxx Fargo Bank Minnesota, 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 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.
For each Distribution Date occurring prior to and including the
Distribution Date in February 2008, interest will accrue at a rate equal to
3.828% per annum. For each Distribution Date occurring after the Distribution
Date in February 2008 and prior to the Distribution Date in June 2008, interest
will accrue at a per annum rate equal to the Adjusted Net WAC of the Group 2
Mortgage Loans plus 0.1890659%. For each Distribution Date occurring on and
after the Distribution Date in June 2008, interest will accrue at a per annum
rate equal to the weighted average of the Net Mortgage Interest Rates of the
Group 2 Mortgage Loans (based on the Stated Principal Balances of the Group 2
Mortgage Loans on the Due Date in the month preceding the month of such
Distribution Date).
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT A-3-A-1
[FORM OF FACE OF CLASS 3-A-1 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class 3-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class 3-A-1
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: June 1, 2003
First Distribution Date: July 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $92,324,000.00
Pass-Through Rate: Variable
CUSIP No.: 05948X KX 8
ISIN No.: US05948XKX83
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 Mortgage Securities, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated June 24, 2003 (the "Pooling
and Servicing Agreement"), among the Depositor, Bank of America, N.A., as
servicer (the "Servicer"), and Xxxxx Fargo Bank Minnesota, 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 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.
For each Distribution Date occurring prior to and including the
Distribution Date in May 2010, interest will accrue at a rate equal to 3.994%
per annum. For each Distribution Date occurring after the Distribution Date in
May 2010, interest will accrue at a per annum rate equal to the weighted average
of the Net Mortgage Interest Rates of the Group 3 Mortgage Loans (based on the
Stated Principal Balances of the Group 3 Mortgage Loans on the Due Date in the
month preceding the month of such Distribution Date).
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT A-P
[FORM OF FACE OF CLASS A-P CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class A-P
[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 MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class A-P
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: June 1, 2003
First Distribution Date: July 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $401,285.00
Pass-Through Rate: Principal Only/Variable
CUSIP No.: 05948X KY 6
ISIN No.: US05948XKY66
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 Mortgage Securities, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated June 24, 2003 (the "Pooling
and Servicing Agreement"), among the Depositor, Bank of America, N.A., as
servicer (the "Servicer"), and Xxxxx Fargo Bank Minnesota, 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.
For the purposes of determining distributions in reduction of Class
Certificate Balance and interest, the Class A-P Certificates will be deemed to
consist of three components which are not severable (each, a "Component").
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicer or the Trustee
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.
The Class A-P Certificates will receive only distributions of
principal until and including the Distribution Date in May 2006. For each
Distribution Date after the Distribution Date in May 2006, interest will accrue
on the Class 1-A-P Component at a per annum rate equal to the weighted average
of the Net Mortgage Interest Rates of the Group 1 Mortgage Loans (based on the
Stated Principal Balances of the Group 1 Mortgage Loans on the Due Date in the
month preceding the month of such Distribution Date). For each Distribution Date
after the Distribution Date in May 2008, interest will accrue on the Class 2-A-P
Component at a per annum rate equal to the weighted average of the Net Mortgage
Interest Rates of the Group 2 Mortgage Loans (based on the Stated Principal
Balances of the Group 2 Mortgage Loans on the Due Date in the month preceding
the month of such Distribution Date). For each Distribution Date after the
Distribution Date in May 2010, interest will accrue on the Class 3-A-P Component
at a per annum rate equal to the weighted average of the Net Mortgage Interest
Rates of the Group 3 Mortgage Loans (based on the Stated Principal Balances of
the Group 3 Mortgage Loans on the Due Date in the month preceding the month of
such Distribution Date).
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT A-SES
[FORM OF FACE OF CLASS SES CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class SES
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").
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE TRUSTEE EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE, STATING THAT 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 (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE
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 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.
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.
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 MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class SES
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: June 1, 2003
First Distribution Date: July 25, 2003
Initial Notional
Amount of this
Certificate
("Denomination"): $
Initial Notional
Amount of this Class: $1,064,337,410.32
CUSIP No.: 05948X LC 3
ISIN No.: US05948XLC38
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
Mortgage Securities, Inc. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated June 24, 2003 (the "Pooling and Servicing
Agreement"), among the Depositor, Bank of America, N.A., as servicer (the
"Servicer"), and Xxxxx Fargo Bank Minnesota, 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 SES Certificate is not entitled to any distributions with
respect to principal on the Mortgage Loans in the Trust.
For purposes of the distribution of interest this Certificate will
be deemed to consist of three Components. The Components are not severable.
Interest will be determined on each Component in accordance with the Pooling and
Servicing Agreement. The Pass-Through Rate of the Class 1-SES Component will be
0.325% per annum and the Pass-Through Rate of the Class 2-SES and Class 3-SES
Components will be 0.200% per annum.
This Certificate will also be entitled to Ancillary Income as
described in the Pooling and Servicing Agreement.
Amounts distributable on this Certificate will be subject to
reduction for Class SES Compensating Interest to the extent described in the
Pooling and Servicing Agreement.
This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Servicer or the Trustee 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 Trustee.
* * *
EXHIBIT A-WIO
[FORM OF FACE OF CLASS WIO CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class WIO
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").
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE TRUSTEE EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE, STATING THAT 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 (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE
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 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.
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.
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 MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class WIO
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: June 1, 2003
First Distribution Date: July 25, 2003
Initial Notional
Amount of this
Certificate
("Denomination"): $
Initial Notional
Amount of this Class: $1,058,284,091.50
Pass-Through Rate: Variable
CUSIP No.: 05948X LD 1
ISIN No.: US05948XLD11
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
Mortgage Securities, Inc. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated June 24, 2003 (the "Pooling and Servicing
Agreement"), among the Depositor, Bank of America, N.A., as servicer (the
"Servicer"), and Xxxxx Fargo Bank Minnesota, 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 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 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.
For purposes of the distribution of interest, this Certificate will
be deemed to consist of three Components. The Components are not severable.
Interest will accrue on any Distribution Date at a per annum rate equal to (i)
for the Class 1-WIO Component, the weighted average of the WIO Rates of the
Group 1 Premium Mortgage Loans (based on the Stated Principal Balances of the
Group 1 Premium Mortgage Loans on the Due Date in the month preceding the month
of such Distribution Date), (ii) for the Class 2-WIO Component, the weighted
average of the WIO Rates of the Group 2 Premium Mortgage Loans (based on the
Stated Principal Balances of the Group 2 Premium Mortgage Loans on the Due Date
in the month preceding the month of such Distribution Date) and (iii) for the
Class 3-WIO Component, the weighted average of the WIO Rates of the Group 3
Premium Mortgage Loans (based on the Stated Principal Balances of the Group 3
Premium Mortgage Loans on the Due Date in the month preceding the month of such
Distribution Date). The Pass-Through Rates on each of the Class 1-WIO Component,
the Class 2-WIO Component and the Class 3-WIO Component will be zero on and
after the Distribution Date in the month following the month of the initial Rate
Adjustment Date for the Premium Mortgage Loan in Loan Group 1, Loan Group 2 and
Loan Group 3, respectively, with the latest initial Rate Adjustment Date.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT B-1
[FORM OF FACE OF CLASS B-1 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
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 SENIOR CERTIFICATES
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class B-1
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: June 1, 2003
First Distribution Date: July 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $13,905,000.00
CUSIP No.: 05948X KZ 3
ISIN No.: US05948XKZ32
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 Mortgage Securities, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated June 24, 2003 (the "Pooling
and Servicing Agreement"), among the Depositor, Bank of America, N.A., as
servicer (the "Servicer"), and Xxxxx Fargo Bank Minnesota, 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 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.
For each Distribution Date, interest will accrue at a per annum rate
equal to the weighted average (based on the Group Subordinate Amount for each
Loan Group) of (i) with respect to Loan Group 1, the Adjusted Net WAC of the
Group 1 Mortgage Loans prior to and including the Distribution Date in May 2006,
and on and after the Distribution Date in June 2006, the weighted average of the
Net Mortgage Interest Rates of the Group 1 Mortgage Loans (based on the Stated
Principal Balances of such Mortgage Loans on the Due Date in the month preceding
the month of such Distribution Date), (ii) with respect to Loan Group 2, the
Adjusted Net WAC of the Group 2 Mortgage Loans prior to and including the
Distribution Date in May 2008 and on and after the Distribution Date in June
2008, the weighted average of the Net Mortgage Interest Rates of the Group 2
Mortgage Loans (based on the Stated Principal Balances of such Mortgage Loans on
the Due Date in the month preceding the month of such Distribution Date) and
(iii) with respect to Loan Group 3, the Adjusted Net WAC of the Group 3 Mortgage
Loans prior to and including the Distribution Date in May 2010 and on and after
the Distribution Date in June 2010, the weighted average of the Net Mortgage
Interest Rates of the Group 3 Mortgage Loans (based on the Stated Principal
Balances of such Mortgage Loans on the Due Date in the month preceding the month
of such Distribution Date).
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT B-2
[FORM OF FACE OF CLASS B-2 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
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 SENIOR CERTIFICATES
AND THE CLASS B-1 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class B-2
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: June 1, 2003
First Distribution Date: July 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $6,386,000.00
Pass-Through Rate: Variable
CUSIP No.: 05948X LA 7
ISIN No.: US05948XLA71
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 Mortgage Securities, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated June 24, 2003 (the "Pooling
and Servicing Agreement"), among the Depositor, Bank of America, N.A., as
servicer (the "Servicer"), and Xxxxx Fargo Bank Minnesota, 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 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.
For each Distribution Date, interest will accrue at a per annum rate
equal to the weighted average (based on the Group Subordinate Amount for each
Loan Group) of (i) with respect to Loan Group 1, the Adjusted Net WAC of the
Group 1 Mortgage Loans prior to and including the Distribution Date in May 2006,
and on and after the Distribution Date in June 2006, the weighted average of the
Net Mortgage Interest Rates of the Group 1 Mortgage Loans (based on the Stated
Principal Balances of such Mortgage Loans on the Due Date in the month preceding
the month of such Distribution Date), (ii) with respect to Loan Group 2, the
Adjusted Net WAC of the Group 2 Mortgage Loans prior to and including the
Distribution Date in May 2008 and on and after the Distribution Date in June
2008, the weighted average of the Net Mortgage Interest Rates of the Group 2
Mortgage Loans (based on the Stated Principal Balances of such Mortgage Loans on
the Due Date in the month preceding the month of such Distribution Date) and
(iii) with respect to Loan Group 3, the Adjusted Net WAC of the Group 3 Mortgage
Loans prior to and including the Distribution Date in May 2010 and on and after
the Distribution Date in June 2010, the weighted average of the Net Mortgage
Interest Rates of the Group 3 Mortgage Loans (based on the Stated Principal
Balances of such Mortgage Loans on the Due Date in the month preceding the month
of such Distribution Date).
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT B-3
[FORM OF FACE OF CLASS B-3 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
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 SENIOR CERTIFICATES,
THE CLASS B-1 CERTIFICATES AND THE CLASS B-2 CERTIFICATES AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT.
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class B-3
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: June 1, 2003
First Distribution Date: July 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $3,725,000.00
Pass-Through Rate: Variable
CUSIP No.: 05948X LB 5
ISIN No.: US05948XLB54
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 Mortgage Securities, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated June 24, 2003 (the "Pooling
and Servicing Agreement"), among the Depositor, Bank of America, N.A., as
servicer (the "Servicer"), and Xxxxx Fargo Bank Minnesota, 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 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.
For each Distribution Date, interest will accrue at a per annum rate
equal to the weighted average (based on the Group Subordinate Amount for each
Loan Group) of (i) with respect to Loan Group 1, the Adjusted Net WAC of the
Group 1 Mortgage Loans prior to and including the Distribution Date in May 2006,
and on and after the Distribution Date in June 2006, the weighted average of the
Net Mortgage Interest Rates of the Group 1 Mortgage Loans (based on the Stated
Principal Balances of such Mortgage Loans on the Due Date in the month preceding
the month of such Distribution Date), (ii) with respect to Loan Group 2, the
Adjusted Net WAC of the Group 2 Mortgage Loans prior to and including the
Distribution Date in May 2008 and on and after the Distribution Date in June
2008, the weighted average of the Net Mortgage Interest Rates of the Group 2
Mortgage Loans (based on the Stated Principal Balances of such Mortgage Loans on
the Due Date in the month preceding the month of such Distribution Date) and
(iii) with respect to Loan Group 3, the Adjusted Net WAC of the Group 3 Mortgage
Loans prior to and including the Distribution Date in May 2010 and on and after
the Distribution Date in June 2010, the weighted average of the Net Mortgage
Interest Rates of the Group 3 Mortgage Loans (based on the Stated Principal
Balances of such Mortgage Loans on the Due Date in the month preceding the month
of such Distribution Date).
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT B-4
[FORM OF FACE OF CLASS B-4 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
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 SENIOR CERTIFICATES,
THE CLASS B-1 CERTIFICATES, THE CLASS B-2 CERTIFICATES AND THE 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 TRUSTEE EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON
BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH
PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF FUNDS USED TO
PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH
TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
("PTE 9 60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE IS NO PLAN WITH RESPECT
TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES AND LIABILITIES FOR THE
CONTRACT(S) HELD BY OR ON BEHALF OF SUCH PLAN AND ALL OTHER PLANS MAINTAINED BY
THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN SECTION V(A)(1) OF PTE
95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE TOTAL OF ALL
RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS ARE DETERMINED
UNDER SECTION I(A) OF PTE 95-60) AT THE DATE OF ACQUISITION AND ALL PLANS THAT
HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE PLANS TO WHICH PTE 95-60 APPLIES,
OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE
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 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 MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class B-4
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: June 1, 2003
First Distribution Date: July 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,596,000.00
Pass-Through Rate: Variable
CUSIP No.: 05948X LE 9
ISIN No.: US05948XLE93
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 Mortgage Securities, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated June 24, 2003 (the "Pooling
and Servicing Agreement"), among the Depositor, Bank of America, N.A., as
servicer (the "Servicer"), and Xxxxx Fargo Bank Minnesota, 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 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.
For each Distribution Date, interest will accrue at a per annum rate
equal to the weighted average (based on the Group Subordinate Amount for each
Loan Group) of (i) with respect to Loan Group 1, the Adjusted Net WAC of the
Group 1 Mortgage Loans prior to and including the Distribution Date in May 2006,
and on and after the Distribution Date in June 2006, the weighted average of the
Net Mortgage Interest Rates of the Group 1 Mortgage Loans (based on the Stated
Principal Balances of such Mortgage Loans on the Due Date in the month preceding
the month of such Distribution Date), (ii) with respect to Loan Group 2, the
Adjusted Net WAC of the Group 2 Mortgage Loans prior to and including the
Distribution Date in May 2008 and on and after the Distribution Date in June
2008, the weighted average of the Net Mortgage Interest Rates of the Group 2
Mortgage Loans (based on the Stated Principal Balances of such Mortgage Loans on
the Due Date in the month preceding the month of such Distribution Date) and
(iii) with respect to Loan Group 3, the Adjusted Net WAC of the Group 3 Mortgage
Loans prior to and including the Distribution Date in May 2010 and on and after
the Distribution Date in June 2010, the weighted average of the Net Mortgage
Interest Rates of the Group 3 Mortgage Loans (based on the Stated Principal
Balances of such Mortgage Loans on the Due Date in the month preceding the month
of such Distribution Date).
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Trustee or the Depositor may require a written Opinion of Counsel
(which may be in-house counsel) acceptable to and in form and substance
reasonably satisfactory to the Trustee and the Depositor that such transfer may
be made pursuant to an exemption, describing the applicable exemption and the
basis therefor, from the 1933 Act and such laws or is being made pursuant to the
1933 Act and such laws, which Opinion of Counsel shall not be an expense of the
Trustee or the Depositor and (ii) the Trustee shall require a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Trustee or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT B-5
[FORM OF FACE OF CLASS B-5 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
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 SENIOR CERTIFICATES,
THE CLASS B-1 CERTIFICATES, THE CLASS B-2 CERTIFICATE, THE CLASS B-3
CERTIFICATES AND THE 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 TRUSTEE EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON
BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH
PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF FUNDS USED TO
PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH
TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
("PTE 9 60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE IS NO PLAN WITH RESPECT
TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES AND LIABILITIES FOR THE
CONTRACT(S) HELD BY OR ON BEHALF OF SUCH PLAN AND ALL OTHER PLANS MAINTAINED BY
THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN SECTION V(A)(1) OF PTE
95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE TOTAL OF ALL
RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS ARE DETERMINED
UNDER SECTION I(A) OF PTE 95-60) AT THE DATE OF ACQUISITION AND ALL PLANS THAT
HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE PLANS TO WHICH PTE 95-60 APPLIES,
OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE
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 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 MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class B-5
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: June 1, 2003
First Distribution Date: July 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,597,000.00
Pass-Through Rate: Variable
CUSIP No.: 05948X LF 6
ISIN No.: US05948XLF68
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 Mortgage Securities, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated June 24, 2003 (the "Pooling
and Servicing Agreement"), among the Depositor, Bank of America, N.A., as
servicer (the "Servicer"), and Xxxxx Fargo Bank Minnesota, 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 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.
For each Distribution Date, interest will accrue at a per annum rate
equal to the weighted average (based on the Group Subordinate Amount for each
Loan Group) of (i) with respect to Loan Group 1, the Adjusted Net WAC of the
Group 1 Mortgage Loans prior to and including the Distribution Date in May 2006,
and on and after the Distribution Date in June 2006, the weighted average of the
Net Mortgage Interest Rates of the Group 1 Mortgage Loans (based on the Stated
Principal Balances of such Mortgage Loans on the Due Date in the month preceding
the month of such Distribution Date), (ii) with respect to Loan Group 2, the
Adjusted Net WAC of the Group 2 Mortgage Loans prior to and including the
Distribution Date in May 2008 and on and after the Distribution Date in June
2008, the weighted average of the Net Mortgage Interest Rates of the Group 2
Mortgage Loans (based on the Stated Principal Balances of such Mortgage Loans on
the Due Date in the month preceding the month of such Distribution Date) and
(iii) with respect to Loan Group 3, the Adjusted Net WAC of the Group 3 Mortgage
Loans prior to and including the Distribution Date in May 2010 and on and after
the Distribution Date in June 2010, the weighted average of the Net Mortgage
Interest Rates of the Group 3 Mortgage Loans (based on the Stated Principal
Balances of such Mortgage Loans on the Due Date in the month preceding the month
of such Distribution Date).
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Trustee or the Depositor may require a written Opinion of Counsel
(which may be in-house counsel) acceptable to and in form and substance
reasonably satisfactory to the Trustee and the Depositor that such transfer may
be made pursuant to an exemption, describing the applicable exemption and the
basis therefor, from the 1933 Act and such laws or is being made pursuant to the
1933 Act and such laws, which Opinion of Counsel shall not be an expense of the
Trustee or the Depositor and (ii) the Trustee shall require a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Trustee or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT B-6
[FORM OF FACE OF CLASS B-6 CERTIFICATE]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
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 SENIOR CERTIFICATES,
THE CLASS B-1 CERTIFICATES, THE CLASS B-2 CERTIFICATES, THE CLASS B-3
CERTIFICATES, THE CLASS B-4 CERTIFICATES AND THE 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 TRUSTEE EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON
BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH
PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF FUNDS USED TO
PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH
TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
("PTE 9 60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE IS NO PLAN WITH RESPECT
TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES AND LIABILITIES FOR THE
CONTRACT(S) HELD BY OR ON BEHALF OF SUCH PLAN AND ALL OTHER PLANS MAINTAINED BY
THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN SECTION V(A)(1) OF PTE
95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE TOTAL OF ALL
RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS ARE DETERMINED
UNDER SECTION I(A) OF PTE 95-60) AT THE DATE OF ACQUISITION AND ALL PLANS THAT
HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE PLANS TO WHICH PTE 95-60 APPLIES,
OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE
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 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 MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 2003-F
Class B-6
evidencing an interest in a Trust consisting primarily of three loan groups of
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: June 1, 2003
First Distribution Date: July 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $2,129,024.00
Pass-Through Rate: Variable
CUSIP No.: 05948X LG 4
ISIN No.: US05948XLG42
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 Mortgage Securities, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated June 24, 2003 (the "Pooling
and Servicing Agreement"), among the Depositor, Bank of America, N.A., as
servicer (the "Servicer"), and Xxxxx Fargo Bank Minnesota, 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 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.
For each Distribution Date, interest will accrue at a per annum rate
equal to the weighted average (based on the Group Subordinate Amount for each
Loan Group) of (i) with respect to Loan Group 1, the Adjusted Net WAC of the
Group 1 Mortgage Loans prior to and including the Distribution Date in May 2006,
and on and after the Distribution Date in June 2006, the weighted average of the
Net Mortgage Interest Rates of the Group 1 Mortgage Loans (based on the Stated
Principal Balances of such Mortgage Loans on the Due Date in the month preceding
the month of such Distribution Date), (ii) with respect to Loan Group 2, the
Adjusted Net WAC of the Group 2 Mortgage Loans prior to and including the
Distribution Date in May 2008 and on and after the Distribution Date in June
2008, the weighted average of the Net Mortgage Interest Rates of the Group 2
Mortgage Loans (based on the Stated Principal Balances of such Mortgage Loans on
the Due Date in the month preceding the month of such Distribution Date) and
(iii) with respect to Loan Group 3, the Adjusted Net WAC of the Group 3 Mortgage
Loans prior to and including the Distribution Date in May 2010 and on and after
the Distribution Date in June 2010, the weighted average of the Net Mortgage
Interest Rates of the Group 3 Mortgage Loans (based on the Stated Principal
Balances of such Mortgage Loans on the Due Date in the month preceding the month
of such Distribution Date).
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Trustee or the Depositor may require a written Opinion of Counsel
(which may be in-house counsel) acceptable to and in form and substance
reasonably satisfactory to the Trustee and the Depositor that such transfer may
be made pursuant to an exemption, describing the applicable exemption and the
basis therefor, from the 1933 Act and such laws or is being made pursuant to the
1933 Act and such laws, which Opinion of Counsel shall not be an expense of the
Trustee or the Depositor and (ii) the Trustee shall require a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Trustee or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT C
[FORM OF REVERSE OF ALL CERTIFICATES]
BANC OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as Banc of America Mortgage Securities, Inc. 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 Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Pooling and Servicing
Agreement or, except as expressly provided in the Pooling and Servicing
Agreement, subject to any liability under the Pooling and Servicing Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to the Pooling and Servicing Agreement for the
interests, rights and limitations of rights, benefits, obligations and duties
evidenced thereby, and the rights, duties and immunities of the Trustee.
Pursuant to the terms of the Pooling and Servicing Agreement, a
distribution will be made on the 25th 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 Trustee 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 Trustee shall agree
upon, such Certificateholder's Percentage Interest in the amount to which the
related Class of Certificates is entitled in accordance with the priorities set
forth in 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 Trustee as contemplated by
Section 10.01 of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Trustee and the rights of the Certificateholders under the
Pooling and Servicing Agreement at any time by the Depositor, the Servicer 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 Trustee upon surrender of this Certificate
for registration of transfer at the Corporate Trust Office accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations and evidencing the same aggregate
Percentage Interest in the Trust will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest, as requested by the Holder surrendering the
same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer, the Certificate Registrar and the Trustee and
any agent of the Depositor, the Servicer, the Certificate Registrar or the
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Servicer, the
Certificate Registrar, the Trustee 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 10% of the aggregate Cut-Off Date Principal Balance, the Depositor
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.
The 10% may be reduced by an amendment to the Pooling and Servicing Agreement
without Certificateholder consent under certain conditions set forth 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 Trustee has caused this Certificate to be duly
executed.
Dated:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By _________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the Pooling and Servicing
Agreement referenced herein.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By _________________________________________
Authorized Signatory
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:
________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________ for the
account of ___________________, account number _________________________, or, if
mailed by check, to Applicable statements should be mailed to
This information is provided by _____________________, the assignee named
above, or , as its agent.
EXHIBIT D-1
LOAN GROUP 1 MORTGAGE LOAN SCHEDULE
[Intentionally Omitted]
EXHIBIT D-2
LOAN GROUP 2 MORTGAGE LOAN SCHEDULE
[Intentionally Omitted]
EXHIBIT D-3
LOAN GROUP 3 MORTGAGE LOAN SCHEDULE
[Intentionally Omitted]
EXHIBIT E
REQUEST FOR RELEASE OF DOCUMENTS
[date]
To: Xxxxx Fargo Bank Minnesota, National Association
0000 00xx Xxxxxx, X.X.
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Inventory Control
Re: Banc of America Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 2003-F, issued pursuant to a Pooling and
Servicing Agreement dated June 24, 2003, among Banc of America
Mortgage Securities, Inc., as Depositor, Bank of America, N.A., as
Servicer, and Xxxxx Fargo Bank Minnesota, 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
Mortgage Securities, Inc.)
Issuer:___________________________________
Address:__________________________________
__________________________________________
Date:_____________________________________
Custodian
---------
Xxxxx Fargo Bank Minnesota, 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 June 24, 2003, among Banc of America Mortgage Securities, Inc., as
Depositor, Bank of America, N.A., as Servicer, and Xxxxx Fargo Bank Minnesota,
National Association, as Trustee.
[_______________],
By:_________________________________
Name:_______________________________
Title:______________________________
EXHIBIT G-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank Minnesota, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services - BOAMS 2003-F
Re: Banc of America Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 2003-F, Class ___, having an initial aggregate
Certificate Balance as of June 24, 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 June 24, 2003, among Banc of America Mortgage Securities,
Inc., as Depositor, Bank of America, N.A., as Servicer, and Xxxxx Fargo Bank
Minnesota, 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 Trustee, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any
offer to buy or accept a transfer, pledge or other disposition of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security with
any person in any manner, (d) made any general solicitation with respect
to any Transferred Certificate, any interest in a Transferred Certificate
or any other similar security by means of general advertising or in any
other manner, or (e) taken any other action with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security, which (in the case of any of the acts described in
clauses (a) through (e) hereof) would constitute a distribution of the
Transferred Certificates under the Securities Act of 1933, as amended (the
"1933 Act"), would render the disposition of the Transferred Certificates
a violation of Section 5 of the 1933 Act or any state securities laws, or
would require registration or qualification of the Transferred
Certificates pursuant to the 1933 Act or any state securities laws.
Very truly yours,
____________________________________
(Transferor)
By:_________________________________
Name:_______________________________
Title:______________________________
EXHIBIT G-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank Minnesota, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services - BOAMS 2003-F
Re: Banc of America Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 2003-F, Class ___, having an initial aggregate
Certificate Balance as of June 24, 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 June 24, 2003, among Banc of America Mortgage
Securities, Inc., as Depositor, Bank of America, N.A., as Servicer, and Xxxxx
Fargo Bank Minnesota, 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 Trustee, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "1933 Act"), and has
completed one of the forms of certification to that effect attached hereto
as Annex 1 and Annex 2. The Transferee is aware that the sale to it is
being made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of another
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a Qualified Institutional Buyer that purchases
for its own account or for the account of another Qualified Institutional
Buyer to whom notice is given that the resale, pledge or transfer is being
made in reliance on Rule 144A, or (b) pursuant to another exemption from
registration under the 1933 Act.
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement and the Trust created pursuant
thereto, (e) any credit enhancement mechanism associated with the
Transferred Certificate, and (f) all related matters, that it has
requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgment below.
Very truly yours,
____________________________________
(Transferor)
By:_________________________________
Name:_______________________________
Title:______________________________
Nominee Acknowledgment
----------------------
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
Very truly yours,
____________________________________
(Nominee)
By:_________________________________
Name:_______________________________
Title:______________________________
ANNEX 1 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [__________________] (the
"Transferor") and Xxxxx Fargo Bank Minnesota, National Association, as Trustee,
with respect to the mortgage pass-through certificates (the "Transferred
Certificates") described in the Transferee certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended,
because (i) the Transferee owned and/or invested on a discretionary basis
$______________________[1] in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
----------------------------
[1] Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any state, U.S. territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the state or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. bank, and not more than 18 months
preceding such date of sale in the case of a foreign bank or
equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a state or federal authority having supervision over
any such institutions, or is a foreign savings and loan association
or equivalent institute and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. savings and loan association, and
not more than 18 months preceding such date of sale in the case of a
foreign savings and loan association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a state, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency or
instrumentality of the state or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee, (ii) securities that are part
of an unsold allotment to or subscription by the Transferee, if the Transferee
is a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee did not
include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee may be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No 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") and Xxxxx Fargo Bank Minnesota, National Association, as Trustee,
with respect to the mortgage pass-through certificates (the "Transferred
Certificates") described in the Transferee certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A ("Rule 144A") under the Securities Act of 1933, as amended, because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, and (ii) as marked below, the Transferee alone
owned and/or invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Transferee or the Transferee's Family of Investment Companies, the cost
of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis
$____________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $__________________ in securities (other than
the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
____________________________________
Print Name of Transferee or Adviser
By:_________________________________
Name:_______________________________
Title:______________________________
IF AN ADVISER:
____________________________________
Print Name of Transferee
By:_________________________________
Date:_______________________________
EXHIBIT G-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank Minnesota, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services - BOAMS 2003-F
Re: Banc of America Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 2003-F, Class ___, having an initial aggregate
Certificate Principal Balance as of June 24, 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
June 24, 2003, among Banc of America Mortgage Securities, Inc., as Depositor,
Bank of America, N.A., as Servicer, and Xxxxx Fargo Bank Minnesota, 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 Trustee, that:
1. Transferee is acquiring the Transferred Certificates for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "1933 Act"), or
any applicable state securities laws.
2. Transferee understands that (a) the Transferred Certificates have not
been and will not be registered under the 1933 Act or registered or qualified
under any applicable state securities laws, (b) neither the Depositor nor the
Trustee is obligated so to register or qualify the Transferred Certificates and
(c) neither the Transferred Certificates nor any security issued in exchange
therefor or in lieu thereof may be resold or transferred unless such resale or
transfer is exempt from the registration requirements of the 1933 Act and any
applicable state securities laws or is made in accordance with the 1933 Act and
laws, in which case (i) unless the transfer is made in reliance on Rule 144A
under the 1933 Act, the Trustee or the Depositor may require a written Opinion
of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Trustee and the Depositor that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the 1933 Act and such laws or is being
made pursuant to the 1933 Act and such laws, which Opinion of Counsel shall not
be an expense of the Trustee or the Depositor and (ii) the Trustee shall require
a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached to the Pooling and Servicing Agreement as
Exhibit G-1 and a certificate from such Certificateholder's prospective
transferee substantially in the form attached to the Pooling and Servicing
Agreement either as Exhibit G-2A or as Exhibit G-2B, which certificates shall
not be an expense of the Trustee or the Depositor; provided that the foregoing
requirements under clauses (i) and (ii) shall not apply to a transfer of a
Private Certificate between or among the Depositor, the Seller, their affiliates
or both.
3. The Transferee understands that it may not sell or otherwise transfer
the Transferred Certificates, any security issued in exchange therefor or in
lieu thereof or any interest in the foregoing except in compliance with the
provisions of Section 6.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A
TRANSACTION EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT
AND IN ACCORDANCE WITH THE PROVISIONS OF THE POOLING AND SERVICING
AGREEMENT REFERENCED HEREIN.
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.
Very truly yours,
____________________________________
(Nominee)
By:_________________________________
Name:_______________________________
Title:______________________________
EXHIBIT H
FORM OF TRANSFEREE REPRESENTATION LETTER
FOR BENEFIT PLAN-RESTRICTED CERTIFICATES
Xxxxx Fargo Bank Minnesota, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services - BOAMS 2003-F
Re: Banc of America Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 2003-F, Class ___, having an initial aggregate
Certificate Principal Balance as of June 24, 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 June 24, 2003, among Banc of
America Mortgage Securities, Inc., as Depositor, Bank of America, N.A., as
Servicer, and Xxxxx Fargo Bank Minnesota, 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
Trustee, either that:
(a) it is not, and is not acting on behalf of, an employee benefit plan or
arrangement, including an individual retirement account, subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), the Internal
Revenue Code of 1986, as amended (the "Code"), or any federal, state or local
law ("Similar Law") which is similar to ERISA or the Code (collectively, a
"Plan"), and it is not using the assets of any such Plan to effect the purchase
of the Transferred Certificates; or
(b) With respect to the Class B-4, Class B-5 and Class B-6 Certificates
only, it is an insurance company and the source of funds used to purchase the
Transferred Certificates is an "insurance company general account" (as defined
in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTE 95-60"),
60 Fed. Reg. 35925 (July 12, 1995)), there is no Plan with respect to which the
amount of such general account's reserves and liabilities for the contract(s)
held by or on behalf of such Plan and all other Plans maintained by the same
employer (or affiliate thereof as defined in Section V(a)(1) of PTE 95-60) or by
the same employee organization exceeds 10% of the total of all reserves and
liabilities of such general account (as such amounts are determined under
Section I(a) of PTE 95-60) at the date of acquisition and all Plans that have an
interest in such general account are Plans to which PTE 95-60 applies.
Capitalized terms used in and not otherwise defined herein shall have the
meaning assigned to them in the Pooling and Servicing Agreement.
Very truly yours,
____________________________________
Transferee
By:_________________________________
Name:_______________________________
Title:______________________________
Date:_______________________________
EXHIBIT I
FORM OF AFFIDAVIT REGARDING TRANSFER OF
RESIDUAL CERTIFICATE PURSUANT TO SECTION 6.02
Banc of America Mortgage Securities, Inc.
Mortgage Pass-Through Certificates,
Series 2003-F
STATE OF )
) ss:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of _______________________________, the
proposed transferee (the "Transferee") of the Class [1-A-R] [1-A-LR] Certificate
(the "Residual Certificate") issued pursuant to the Pooling and Servicing
Agreement, dated June 24, 2003, (the "Agreement"), relating to the
above-referenced Series, by and among Banc of America Mortgage Securities, Inc.,
as depositor (the "Depositor"), Bank of America, N.A., as servicer, and Xxxxx
Fargo Bank Minnesota, 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:
|_| The consideration paid to the Transferee to acquire the Residual
Certificate equals or exceeds the excess of (a) the present value of the
anticipated tax liabilities over (b) the present value of the anticipated
savings associated with holding such Residual Certificate, in each case
calculated in accordance with U.S. Treasury Regulations Sections
1.860E-1(c)(7) and (8), computing present values using a discount rate
equal to the short-term Federal rate prescribed by Section 1274(d) of the
Code and the compounding period used by the Transferee.
OR
--
|_| The transfer of the Residual Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly:
(i) the Transferee is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income
from Residual Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the Transferee's
two fiscal years preceding the year of the transfer, the Transferee
had gross assets for financial reporting purposes (excluding any
obligation of a person related to the Transferee within the meaning
of U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess
of $100 million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Residual Certificate only to
another "eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that
satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii) and
(iii) and Section 1.860E-1(c)(5) of the U.S. Treasury Regulations;
(iv) the Transferee has determined the consideration paid to it to
acquire the Residual Certificate based on reasonable market
assumptions (including, but not limited to, borrowing and investment
rates, prepayment and loss assumptions, expense and reinvestment
assumptions, tax rates and other factors specific to the Transferee)
that it has determined in good faith; and
(v) in the event of any transfer of the Residual Certificate by the
Transferee, the Transferee will require its transferee to complete a
representation in the form of this Attachment A as a condition of
such transferee's purchase of the Residual Certificate.
EXHIBIT J
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 Bank of America, N.A. (the "Servicer")
and ___________________ (the "Loss Mitigation Advisor").
PRELIMINARY STATEMENT
_________________ (the "Purchaser") is the holder of the entire interest
in Banc of America Mortgage Securities, Inc.; 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 Mortgage Securities, Inc., as depositor
(the "Depositor"), the Servicer, and Xxxxx Fargo Bank Minnesota, 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,
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Secondary Marketing with a copy to the General Counsel
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.
Bank of America, N.A.
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
NONE
EXHIBIT M
FORM OF INITIAL CERTIFICATION OF THE TRUSTEE
June 24, 0000
Xxxx xx Xxxxxxx Mortgage Securities, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Banc of America Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 2003-F, issued pursuant to a Pooling and
Servicing Agreement dated June 24, 2003, among Banc of America
Mortgage Securities, Inc., as Depositor, Bank of America, N.A., as
Servicer, and Xxxxx Fargo Bank Minnesota, 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, except as
specified in any list of exceptions attached hereto, either (i) it has received
the original Mortgage Note relating to each of the Mortgage Loans listed on the
Mortgage Loan Schedule or (ii) if such original Mortgage Note has been lost, a
copy of such original Mortgage Note, together with a lost note affidavit.
The 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.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By:___________________________________
Name:_________________________________
Title:________________________________
EXHIBIT N
FORM OF FINAL CERTIFICATION OF THE TRUSTEE
[__________ __, ____]
Banc of America Mortgage Securities, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Banc of America Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 2003-F, issued pursuant to a Pooling and
Servicing Agreement dated June 24, 2003, among Banc of America
Mortgage Securities, Inc., as Depositor, Bank of America, N.A., as
Servicer, and Xxxxx Fargo Bank Minnesota, 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.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By:___________________________________
Name:_________________________________
Title:________________________________
EXHIBIT O
Form of Xxxxxxxx-Xxxxx Certification
Banc of America Mortgage Securities, Inc.
Mortgage Pass-Through Certificates,
Series 2003-F
I, [________], a [_____________] of [Banc of America Mortgage
Securities, Inc.] [Bank of America, N.A.], 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
Mortgage 2003-F 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 distribution or servicing information required
to be provided to the Trustee by the Servicer under the Pooling and
Servicing Agreement, dated June 24, 2003 (the "Agreement"), among Banc of
America Mortgage Securities, Inc., as depositor, Bank of America, N.A., as
servicer, and Xxxxx Fargo Bank Minnesota, National Association, as
trustee, is included in these reports;
4. [Based on my knowledge and upon the annual compliance statement included
in the report and required to be delivered to the Trustee in accordance
with the terms of the Agreement, and except as disclosed in the reports,
the Servicer has fulfilled its obligations under the Agreement;] [I am
responsible for reviewing the activities performed by the Servicer under
the Agreement and based upon my knowledge and the annual compliance review
required under the Agreement, and except as disclosed in the reports, the
Servicer has fulfilled its obligations under the Agreement;]
5. The reports disclose all significant deficiencies relating to the
Servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant after conducting a
review in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or similar procedure as set forth in the Agreement that
is included in these reports; and
6. In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated party: Xxxxx
Fargo Bank Minnesota, National Association.
[BANC OF AMERICA MORTGAGE
SECURITIES, INC.] [BANK OF
AMERICA, N.A.]
By: ____________________________________
Name:
Title:
EXHIBIT P
Form of Certification to be Provided by the Trustee to the [Depositor][Servicer]
Banc of America Mortgage Securities, Inc.
Mortgage Pass-Through Certificates,
Series 2003-F
The Trustee hereby certifies to the [Depositor][Servicer] and its
officers, directors and affiliates, and with the knowledge and intent that they
will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the 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 to the Trustee by the Servicer under the Pooling and
Servicing Agreement, dated June 24, 2003, among Banc of America Mortgage
Securities, Inc., as depositor, Bank of America, N.A., as servicer, and Xxxxx
Fargo Bank Minnesota, National Association, as trustee, for inclusion in these
reports is included in these reports.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By:___________________________________
Name:_________________________________
Title:________________________________
