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XXXX XX XXXXXXX FUNDING CORPORATION,
as Depositor,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Master Servicer,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Securities Administrator
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated July 30, 2003
-----------------------
Mortgage Pass-Through Certificates
Series 2003-2
================================================================================
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT...........................................................
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.....................................................
Section 1.02 Interest Calculations.............................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans......................................
Section 2.02 Acceptance by the Trustee of the Mortgage Loans...................
Section 2.03 Representations, Warranties and Covenants of the Master...........
Servicer.........................................................
Section 2.04 Representations and Warranties of the Depositor as to the
Mortgage Loans...................................................
Section 2.05 Designation of Interests in the REMIC.............................
Section 2.06 Designation of Start-up Day.......................................
Section 2.07 REMIC Certificate Maturity Date...................................
Section 2.08 Execution and Delivery of Certificates............................
ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicing of the Mortgage Loans............................
Section 3.02 Monitoring of Servicers...........................................
Section 3.03 Fidelity Bond; Errors and Omissions Insurance.....................
Section 3.04 Access to Certain Documentation...................................
Section 3.05 Maintenance of Primary Mortgage Insurance Policy; Claims
Section 3.06 Rights of the Depositor, the Securities Administrator and
the Trustee in Respect of the Master Servicer....................
Section 3.07 Trustee to Act as Master Servicer.................................
Section 3.08 Servicer Custodial Accounts.......................................
Section 3.09 Collection of Mortgage Loan Payments; Servicer Custodial
Account and Certificate Account..................................
Section 3.10 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts..................................................
Section 3.11 Access to Certain Documentation and Information Regarding
the Mortgage Loans...............................................
Section 3.12 Permitted Withdrawals from the Certificate Account................
Section 3.13 Maintenance of Hazard Insurance...................................
Section 3.14 Presentment of Claims and Collection of Proceeds..................
Section 3.15 Enforcement of Due-On-Sale Clauses; Assumption Agreements.........
Section 3.16 Realization Upon Defaulted Mortgage Loans; REO Property...........
Section 3.17 Trustee to Cooperate; Release of Mortgage Files...................
Section 3.18 Documents, Records and Funds in Possession of the Master
Servicer to be Held for the Trustee..............................
Section 3.19 Master Servicer Compensation......................................
Section 3.20 Annual Statement as to Compliance.................................
Section 3.21 Annual Independent Public Accountants' Servicing
Statement; Financial Statements..................................
Section 3.22 Advances..........................................................
Section 3.23 Reports to the Securities and Exchange Commission.................
ARTICLE IV
MASTER SERVICER'S CERTIFICATE
Section 4.01 Master 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
Securities Administrator.........................................
Section 5.08 REMIC Related Covenants...........................................
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates..................................................
Section 6.02 Registration of Transfer and Exchange of Certificates.............
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates.................
Section 6.04 Persons Deemed Owners.............................................
ARTICLE VII
THE DEPOSITOR AND THE MASTER SERVICER
Section 7.01 Respective Liabilities of the Depositor and the Master
Servicer.........................................................
Section 7.02 Merger or Consolidation of the Depositor or the Master
Servicer.........................................................
Section 7.03 Limitation on Liability of the Depositor, the Master
Servicer and Others..............................................
Section 7.04 Depositor and Master 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 AND THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee and Securities Administrator....................
Section 9.02 Certain Matters Affecting the Trustee and the Securities
Administrator....................................................
Section 9.03 Neither Trustee nor Securities Administrator Liable for
Certificates or Mortgage Loans...................................
Section 9.04 Trustee and Securities Administrator May Own Certificates.........
Section 9.05 Eligibility Requirements for Trustee and the Securities
Administrator....................................................
Section 9.06 Resignation and Removal of Trustee and the Securities
Administrator....................................................
Section 9.07 Successor Trustee or Securities Administrator.....................
Section 9.08 Merger or Consolidation of Trustee or Securities
Administrator....................................................
Section 9.09 Appointment of Co-Trustee or Separate Trustee.....................
Section 9.10 Authenticating Agents.............................................
Section 9.11 Securities Administrator's Fees and Expenses and
Trustee's Fees and Expenses......................................
Section 9.12 Appointment of Custodian..........................................
Section 9.13 Paying Agents.....................................................
Section 9.14 Limitation of Liability...........................................
Section 9.15 Trustee or Securities Administrator 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 Master Servicer or
Liquidation of All Mortgage Loans................................
Section 10.02 Additional Termination Requirements...............................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.........................................................
Section 11.02 Recordation of Agreement; Counterparts............................
Section 11.03 Limitation on Rights of Certificateholders........................
Section 11.04 Governing Law.....................................................
Section 11.05 Notices...........................................................
Section 11.06 Severability of Provisions........................................
Section 11.07 Certificates Nonassessable and Fully Paid.........................
Section 11.08 Access to List of Certificateholders..............................
Section 11.09 Recharacterization................................................
EXHIBITS
Exhibit 1-A-1 Form of Face of Class 1-A-1 Certificate
Exhibit 1-A-WIO Form of Face of Class 1-A-WIO Certificate
Exhibit 1-A-R Form of Face of Class 1-A-R Certificate
Exhibit 1-A-LR Form of Face of Class 1-A-LR Certificate
Exhibit 2-A-1 Form of Face of Class 2-A-1 Certificate
Exhibit 2-A-WIO Form of Face of Class 2-A-WIO Certificate
Exhibit A-PO Form of Face of Class A-PO Certificate
Exhibit B-1 Form of Face of Class B-1 Certificate
Exhibit B-2 Form of Face of Class B-2 Certificate
Exhibit B-3 Form of Face of Class B-3 Certificate
Exhibit B-4 Form of Face of Class B-4 Certificate
Exhibit B-5 Form of Face of Class B-5 Certificate
Exhibit B-6 Form of Face of Class B-6 Certificate
Exhibit C Form of Reverse of all Certificates
Exhibit D Mortgage Loan Schedule
Exhibit E Request for Release of Documents
Exhibit F Form of Certification of Establishment of Account
Exhibit G-1 Form of Transferor's Certificate
Exhibit G-2A Form 1 of Transferee's Certificate
Exhibit G-2B Form 2 of Transferee's Certificate
Exhibit H Form of Transferee Representation Letter
for ERISA Restricted Certificates
Exhibit I Form of Affidavit Regarding Transfer of Residual
Certificates
Exhibit J [Reserved]
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 Securities Administrator's Certification
Exhibit Q Form of Master Servicer's Certification
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated July 30, 2003 is hereby
executed by and among BANC OF AMERICA FUNDING CORPORATION, as depositor
(together with its permitted successors and assigns, the "Depositor"), XXXXX
FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as master servicer (together with
its permitted successors and assigns, the "Master Servicer"), XXXXX FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION, as securities administrator (together with its
permitted successors and assigns, the "Securities Administrator") and WACHOVIA
BANK, NATIONAL ASSOCIATION, as trustee (together with its permitted successors
and assigns, the "Trustee").
W I T N E S S E T H T H A T:
- - - - - - - - - - - - - -
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
agree as follows:
PRELIMINARY STATEMENT
In exchange for the Certificates, the Depositor hereby conveys the
Trust Estate to the Trustee to create the Trust. The Trust Estate for federal
income tax purposes will be treated as two 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 A-PO, Class
1-A-R and Class 1-A-LR 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-PO and Class 2-A-PO Components
(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, but less than the
integral multiple in excess of the minimum):
================= =================== ========== ============= ============
Initial Class Integral
Certificate Pass- Multiples
Balance or Through Minimum in Excess
Classes Notional Amount Rate Denomination of Minimum
----------------- ------------------- ---------- ------------- ------------
Class 1-A-1 $138,606,000.00 6.50% $1,000 $1
----------------- ------------------- ---------- ------------- ------------
Class 1-A-R $50.00 6.50% $50 N/A
----------------- ------------------- ---------- ------------- ------------
Class 1-A-LR $50.00 6.50% $50 N/A
----------------- ------------------- ---------- ------------- ------------
Class 1-A-WIO $100,724,947.00 (1) $10,000,000 $1
----------------- ------------------- ---------- ------------- ------------
Class 2-A-1 $52,525,000.00 6.00% $1,000 $1
----------------- ------------------- ---------- ------------- ------------
Class 2-A-WIO $39,637,086.00 (2) $10,000,000 $1
----------------- ------------------- ---------- ------------- ------------
Class A-PO (3) (3) $25,000 $1
----------------- ------------------- ---------- ------------- ------------
Class B-1 $2,582,000.00 (4) $25,000 $1
----------------- ------------------- ---------- ------------- ------------
Class B-2 $1,390,000.00 (4) $25,000 $1
----------------- ------------------- ---------- ------------- ------------
Class B-3 $894,000.00 (4) $25,000 $1
----------------- ------------------- ---------- ------------- ------------
Class B-4 $297,000.00 (4) $25,000 $1
----------------- ------------------- ---------- ------------- ------------
Class B-5 $199,000.00 (4) $25,000 $1
----------------- ------------------- ---------- ------------- ------------
Class B-6 $496,814.00 (4) $25,000 $1
================= =================== ========== ============= ============
Integral
Components Initial Pass- Multiples
Component Through Minimum In Excess
Balance Rate Denomination Of Minimum
----------------- ------------------- ---------- ------------- ------------
Class 1-A-PO $1,127,280.00 (5) N/A N/A
----------------- ------------------- ---------- ------------- ------------
Class 2-A-PO $443,395.00 (5) N/A N/A
----------------- ------------------- ---------- ------------- ------------
---------------
(1) Interest will accrue on the Class 1-A-WIO Notional Amount as of any
Distribution Date at a per annum rate equal to (i) the weighted average of the
Net Mortgage Interest Rates of the Group 1 Premium Mortgage Loans (based on the
Stated Principal Balance of the Group 1 Premium Mortgage Loans on the Due Date
in the month preceding the month of such Distribution Date) minus (ii) 6.50%.
(2) Interest will accrue on the Class 2-A-WIO Notional Amount as of any
Distribution Date at a per annum rate equal to (i) the weighted average of the
Net Mortgage Interest Rates of the Group 2 Premium Mortgage Loans (based on the
Stated Principal Balance of the Group 2 Premium Mortgage Loans on the Due Date
in the month preceding the month of such Distribution Date) minus (ii) 6.00%.
(3) The Class A-PO Certificates will be deemed for purposes of the distribution
of principal to consist of two components (the "Class A-PO Components")
described in the table. The Components are not severable.
(4) 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, 6.500% per
annum and (ii) with respect to Loan Group 2, 6.000% per annum.
(5) The Class 1-A-PO and Class 2-A-PO Components will be principal only
Components and will not bear interest.
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.
ABN AMRO: ABN AMRO Mortgage Group, Inc.
ABN AMRO Servicing Agreement: The Flow Sale and Servicing Agreement,
dated as of February 1, 2002, between Banc of America Mortgage Capital
Corporation and ABN AMRO, as amended by the Assignment, Assumption and
Recognition Agreement, dated July 30, 2003, among Bank of America, N.A., the
Depositor, the Trustee and ABN AMRO.
Accrued Certificate Interest: For any Distribution Date and each
interest-bearing Class, one month's interest accrued during the related Interest
Accrual Period at the applicable Pass-Through Rate on the applicable Class
Certificate Balance or Notional Amount, as applicable.
Adjusted Pool Amount: With respect to any Distribution Date 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 Certificates on such Distribution Date and all prior Distribution
Dates and (ii) the principal portion of all Realized Losses (other than Debt
Service Reductions) incurred on the Mortgage Loans in such Loan Group from the
Cut-Off Date through the end of the month preceding such Distribution Date.
Adjusted Pool Amount (PO Portion): With respect to any Distribution
Date and Loan Group, the sum of the amounts, calculated as follows, with respect
to all Outstanding Mortgage Loans in such Loan Group: the product of (i) the PO
Percentage for each such Mortgage Loan and (ii) the remainder of (A) the Cut-Off
Date Principal Balance of such Mortgage Loan minus (B) the sum of (x) all
amounts in respect of principal received in respect of such Mortgage Loan
(including, without limitation, amounts received as Monthly Payments, Periodic
Advances, Principal Prepayments, Liquidation Proceeds and Substitution
Adjustment Amounts) and distributed to Holders of the Certificates on such
Distribution Date and all prior Distribution Dates and (y) the principal portion
of any Realized Loss (other than a Debt Service Reduction) incurred on such
Mortgage Loan from the Cut-Off Date through the end of the month preceding such
Distribution Date.
Advance: A Periodic Advance or a Servicing Advance.
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-PO Portion) for both Loan
Groups.
Agreement: This Pooling and Servicing Agreement together with all
amendments hereof and supplements hereto.
Appraised Value: With respect to any Mortgaged Property, either (i)
the lesser of (a) the appraised value determined in an appraisal obtained by the
originator at origination of such Mortgage Loan and (b) the sales price for such
property, except that, in the case of Mortgage Loans the proceeds of which were
used to refinance an existing mortgage loan, the Appraised Value of the related
Mortgaged Property is the appraised value thereof determined in an appraisal
obtained at the time of refinancing, or (ii) the appraised value determined in
an appraisal made at the request of a Mortgagor subsequent to origination in
order to eliminate the Mortgagor's obligation to keep a Primary Mortgage
Insurance Policy in force.
Assignment of Mortgage: An individual assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form, sufficient under
the laws of the jurisdiction wherein the related Mortgaged Property is located
to give record notice of the sale of the Mortgage.
Authenticating Agents: As defined in Section 9.10.
Book-Entry Certificate: All Classes of Certificates other than the
Physical Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii)
a day on which banking institutions in the Commonwealth of Virginia, the State
of North Carolina, the State of New York, the State of Kentucky, the State of
Minnesota, the State of Illinois, the State of Michigan, the state in which the
master servicing offices of the Master Servicer is located or the state in which
the Corporate Trust Office of the Trustee and the Securities Administrator is
located are required or authorized by law or executive order to be closed.
Calculated Principal Distribution: As defined in Section 5.03(d).
Certificate: Any of the Banc of America Funding Corporation Mortgage
Pass-Through Certificates, Series 2003-2 that are issued pursuant to this
Agreement.
Certificate Account: The Eligible Account created and maintained by
the Securities Administrator pursuant to Section 3.09(b) in the name of the
Securities Administrator, on behalf of the Trustee, for the benefit of the
Certificateholders and designated "Xxxxx Fargo Bank Minnesota, National
Association, as Securities Administrator for Wachovia Bank, National
Association, as Trustee, in trust for registered holders of Banc of America
Funding Corporation Mortgage Pass-Through Certificates, Series 2003-2." The
Certificate Account shall be deemed to consist of three sub-accounts; one for
each Loan Group and a third 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 for the uses and purposes set forth in this
Agreement.
Certificate 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 Certificate Account.
Certificate Balance: With respect to any Certificate at any date,
the maximum dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the product of the Percentage
Interest of such Certificate and the Class Certificate Balance of the Class of
Certificates of which such Certificate is a part.
Certificate Custodian: Initially, Xxxxx Fargo Bank Minnesota,
National Association; thereafter any other Certificate Custodian acceptable to
the Depository and selected by the Securities Administrator.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of a Book-Entry Certificate. With respect to
any Definitive Certificate, the Certificateholder of such Certificate.
Certificate Register: The register maintained pursuant to Section
6.02.
Certificate Registrar: The registrar appointed pursuant to Section
6.02.
Certificateholder: The Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor, the Master Servicer, the Servicers or any affiliate
thereof shall be deemed not to be outstanding and the Percentage Interest and
Voting Rights evidenced thereby shall not be taken into account in determining
whether the requisite amount of Percentage Interests or Voting Rights, as the
case may be, necessary to effect any such consent has been obtained, unless such
entity is the registered owner of the entire Class of Certificates, provided
that the Securities Administrator shall not be responsible for knowing that any
Certificate is registered in the name of an affiliate of the Depositor or the
Servicers unless one of its Responsible Officers has actual knowledge thereof.
Certification: As defined in Section 3.23.
Class: As to the Certificates, the Class 1-A-1, Class 1-A-WIO, Class
1-A-R, Class 1-A-LR, Class 2-A-1, Class 2-A-WIO, Class A-PO, 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-WIO Notional Amount: As to any Distribution Date and the
Class 1-A-WIO Certificates, 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.
Class 2-A-WIO Notional Amount: As to any Distribution Date and the
Class 2-A-WIO Certificates, 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.
Class A Certificates: The Class 1-A-1, Class 1-A-WIO, Class 1-A-R,
Class 1-A-LR, Class 2-A-1, Class 2-A-WIO and Class A-PO Certificates.
Class A-PO Component: Either of the Class 1-A-PO Component or the
Class 2-A-PO Component.
Class A-PO Deferred Amount: As to any Distribution Date and each
Class A-PO Component prior to the Senior Credit Support Depletion Date, the
aggregate of the applicable PO Percentage of each Realized Loss on the Mortgage
Loans in the related Loan Group to be allocated to the Class A-PO Component of
such Group on such Distribution Date or previously allocated to such Class A-PO
Component and not yet paid with respect to such Class A-PO Component pursuant to
Section 5.02(a)(iii) and the amount (without duplication) of any reduction in
the Component Balance of such Class A-PO Component pursuant to Section 5.03(b).]
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-PO, Class 1-A-WIO and Class 2-A-WIO Certificates) and any date of
determination, the Initial Class Certificate Balance of such Class minus the sum
of (i) all distributions of principal made with respect thereto, (ii) all
Realized Losses allocated thereto pursuant to Section 5.03(a) and (iii) all
other reductions in Class Certificate Balance previously allocated thereto
pursuant to Section 5.03(b). The Class Certificate Balance of the Class A-PO
Certificates as of any date of determination shall equal the sum of the
Component Balances of the Class A-PO Components. The Class 1-A-WIO and Class
2-A-WIO Certificates are Interest-Only Certificates and have no Class
Certificate Balance.
Class Interest Shortfall: For any Distribution Date and each
interest-bearing Class, the amount by which Accrued Certificate Interest for
such Class (as reduced pursuant to Section 5.02(c)) exceeds the amount of
interest actually distributed on such Class on such Distribution Date pursuant
to clause (i) of the definition of "Interest Distribution Amount."
Class Unpaid Interest Shortfall: As to any Distribution Date and
each interest-bearing Class, the amount by which the aggregate Class Interest
Shortfalls for such Class on prior Distribution Dates exceeds the amount of
interest actually distributed on such Class on such prior Distribution Dates
pursuant to clause (ii) of the definition of "Interest Distribution Amount."
Closing Date: July 30, 2003.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest: With respect to any Distribution Date and
Servicer, an amount equal to the lesser of (a) the Servicing Fee of such
Servicer for such Distribution Date and (b) the aggregate Prepayment Interest
Shortfall for the month preceding the month of such Distribution Date with
respect to the Mortgage Loans serviced by such Servicer.
Component: As defined in the Preliminary Statement.
Component Balance: With respect to any Class A-PO 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).
Co-op Shares: Shares issued by private non-profit housing
corporations.
Corporate Trust Office: With respect to the Trustee, the principal
office of the Trustee at which at any particular time its certificate transfer
services are conducted, which office at the date of the execution of this
instrument is located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx,
00000-0000 Attention: Structured Finance Trust Services, BAFC, Series 2003-2, or
at such other address as the Trustee may designate from time to time by notice
to the Certificateholders, the Depositor, the Securities Administrator and the
Master Servicer. With respect to the Securities Administrator, the principal
corporate trust office of the Securities Administrator at which at any
particular time its corporate trust business with respect to this Agreement is
conducted, which office at the date of the execution of this instrument is
located at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention:
Corporate Trust Services - BAFC 2003-2, and for certificate transfer purposes is
located at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: Corporate Trust Services - BAFC 2003-2, or at such other address as
the Securities Administrator may designate from time to time by notice to the
Certificateholders, the Depositor, the Trustee and the Master Servicer.
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 Master Servicer, either 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 a Servicer,
procedures (including collection procedures) that such Servicer customarily
employs and exercises in servicing and administering mortgage loans for its own
account and which are in accordance with accepted mortgage servicing practices
of prudent lending institutions servicing mortgage loans of the same type as the
Mortgage Loans in the jurisdictions in which the related Mortgaged Properties
are located.
Cut-Off Date: July 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 $143,981,341.65 for Loan Group 1 and $54,579,248.02 for Loan
Group 2.
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 of such
Mortgage Loan is pursuing an appeal of the court order giving rise to any such
modification and (b)(1) such Mortgage Loan is not in default with respect to
payment due thereunder in accordance with the terms of such Mortgage Loan as in
effect on the Cut-Off Date or (2) Monthly Payments are being advanced by the
applicable Servicer in accordance with the terms of such Mortgage Loan as in
effect on the Cut-Off Date.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that became
the subject of a Debt Service Reduction.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
cured, repurchased or substituted for pursuant to Section 2.02.
Deficient Valuation: As to any Mortgage Loan and any Determination
Date, the excess of (i) the then outstanding indebtedness under such Mortgage
Loan over (ii) the secured valuation thereof established by a court of competent
jurisdiction (pursuant to an order which has become final and nonappealable) as
a result of a proceeding initiated by or against the related Mortgagor under the
Bankruptcy Code, as amended from time to time (11 U.S.C.), pursuant to which
such Mortgagor retained such Mortgaged Property; provided that no such excess
shall be considered a Deficient Valuation so long as (a) the applicable Servicer
is pursuing an appeal of the court order giving rise to any such modification
and (b)(1) such Mortgage Loan is not in default with respect to payments due
thereunder in accordance with the terms of such Mortgage Loan as in effect on
the Cut-Off Date or (2) Monthly Payments are being advanced by the applicable
Servicer in accordance with the terms of such Mortgage Loan as in effect on the
Cut-Off Date.
Deficient Valuation Mortgage Loan: Any Mortgage Loan that became the
subject of a Deficient Valuation.
Definitive Certificates: As defined in Section 6.02(c)(iii).
Depositor: Banc of America Funding Corporation, a Delaware
corporation, or its successor in interest, as depositor of the Trust Estate.
Depository: The Depository Trust Company, the nominee of which is
Cede & Co., as the registered Holder of the Book-Entry Certificates or any
successor thereto appointed in accordance with this Agreement. The Depository
shall at all times be a "clearing corporation" as defined in Section 8-102(3) of
the Uniform Commercial Code of the State of New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date, the 15th day of the
month of the related Distribution Date or, if such 15th day is not a Business
Day, the Business Day immediately preceding such 15th day.
Discount Mortgage Loan: Any Group 1 Discount Mortgage Loan or Group
2 Discount Mortgage Loan.
Distribution Date: The 25th day of each month beginning in August
2003 (or, if such day is not a Business Day, the next Business Day).
Due Date: As to any Distribution Date and each Mortgage Loan, the
first day in the calendar month of such Distribution Date.
Eligible Account: Any of (i) an account or accounts maintained with
(a) Xxxxx Fargo Bank Minnesota, National Association or (b) a federal or state
chartered depository institution or trust company the short-term unsecured debt
obligations of which (or, in the case of a depository institution or trust
company that is the principal subsidiary of a holding company, the debt
obligations of such holding company) have the highest short-term ratings of each
Rating Agency at the time any amounts are held on deposit therein, or (ii) an
account or accounts in a depository institution or trust company in which such
accounts are insured by the FDIC (to the limits established by the FDIC) and the
uninsured deposits in which accounts are otherwise secured such that, as
evidenced by an Opinion of Counsel delivered to the Trustee, the Securities
Administrator and to each Rating Agency, the Certificateholders have a claim
with respect to the funds in such account or a perfected first priority security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution or trust company in which
such account is maintained, or (iii) a trust account or accounts maintained with
the trust department of a federal or state chartered depository institution or
trust company (including the Trustee and the Securities Administrator), acting
in its fiduciary capacity or (iv) any other account acceptable to each Rating
Agency. Eligible Accounts may bear interest and may include, if otherwise
qualified under this definition, accounts maintained with the Trustee or the
Securities Administrator.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificates: Any Class B-4, Class B-5 or Class B-6
Certificate.
Escrow Account: As defined in Section 3.10.
Escrow Payments: The amounts constituting taxes, assessments,
Primary Mortgage Insurance Policy premiums, fire and hazard insurance premiums
and other payments as may be required to be escrowed by the Mortgagor with the
mortgagee pursuant to the terms of any Mortgage Note or Mortgage.
Event of Default: As defined in Section 8.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any Liquidation Proceeds of such Mortgage
Loan received in the calendar month in which such Mortgage Loan became a
Liquidated Mortgage Loan, net of any amounts previously reimbursed to the
applicable Servicer as Nonrecoverable Advance(s) with respect to such Mortgage
Loan pursuant to Section 3.12(a)(iv), exceeds (i) the unpaid principal balance
of such Liquidated Mortgage Loan as of the Due Date in the month in which such
Mortgage Loan became a Liquidated Mortgage Loan plus (ii) accrued interest at
the Mortgage Interest Rate from the Due Date as to which interest was last paid
or for which a Periodic Advance was made (and not reimbursed) up to the Due Date
applicable to the Distribution Date immediately following the calendar month
during which such liquidation occurred.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
Final Distribution Date: The Distribution Date on which the final
distribution in respect of the Certificates will be made pursuant to Section
10.01.
Financial Market Service: Bloomberg Financial Service and any other
financial information provider designated by the Depositor by written notice to
the Securities Administrator.
FIRREA: The Financial Institutions Reform, Recovery and Enforcement
Act of 1989, as amended.
FNMA: Xxxxxx Xxx, or any successor thereto.
Form 10-K: As defined in Section 3.23.
Fractional Interest: As defined in Section 5.02(d).
Group: Either of Group 1 or Group 2.
Group Subordinate Amount: With respect to any Distribution Date and
any Loan Group, the excess of the Pool Stated Principal Balance (Non-PO Portion)
for such Loan Group over the aggregate Class Certificate Balance of the Class A
Certificates (but not the Class A-PO Component) of the Related Group immediately
prior to such date.
Group 1: The Group 1 Senior Certificates and Class 1-A-PO Component.
Group 1 Discount Mortgage Loan: Any Group 1 Mortgage Loan with a Net
Mortgage Interest Rate as of the Cut-off Date that is less than 6.50% per annum.
Group 1 Lower-Tier Rate: For each Distribution Date, a rate equal to
6.500% per annum.
Group 1 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-1
hereto.
Group 1 Premium Mortgage Loan: Any Group 1 Mortgage Loan with a Net
Mortgage Interest Rate as of the Cut-off Date that is greater than or equal to
6.50% per annum.
Group 1 Senior Certificates: Class 1-A-1, Class 1-A-WIO, Class 1-A-R
and Class 1-LR Certificates.
Group 2: The Group 2 Senior Certificates and Class 2-A-PO Component.
Group 2 Discount Mortgage Loan: Any Group 2 Mortgage Loan with a Net
Mortgage Interest Rate as of the Cut-off Date that is less than 6.00% per annum.
Group 2 Lower-Tier Rate: For each Distribution Date, a rate equal to
6.000% per annum.
Group 2 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-2
hereto.
Group 2 Premium Mortgage Loan: Any Group 2 Mortgage Loan with a Net
Mortgage Interest Rate as of the Cut-off Date that is greater than or equal to
6.00% per annum.
Group 2 Senior Certificates: Class 2-A-1 and Class 2-A-WIO
Certificates.
Holder: A Certificateholder.
Independent: When used with respect to any specified Person means
such a Person who (i) is in fact independent of the Depositor, the Master
Servicer and the Servicers, (ii) does not have any direct financial interest or
any material indirect financial interest in the Depositor, the Master Servicer
or the Servicers or in an affiliate of any of them, and (iii) is not connected
with the Depositor, the Master Servicer, or the Servicers as an officer,
employee, promoter, underwriter, trustee, partner, director or person performing
similar functions.
Initial Class Certificate Balance: As to each Class of Certificates
(other than the Class 1-A-WIO and Class 2-A-WIO Certificates), the Class
Certificate Balance set forth in the Preliminary Statement. The Class 1-A-WIO
and Class 2-A-WIO Certificates are Interest-Only Certificates and have no
Initial Class Certificate Balance.
Initial Component Balance: As to each Class A-PO Component, the
Component Balance 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-PO Certificates), the period from and
including the first day of the calendar month preceding the calendar month of
such Distribution Date to but not including the first day of the calendar month
of such Distribution Date.
Interest Distribution Amount: For any Distribution Date and each
interest-bearing Class, the sum of (i) the Accrued Certificate Interest, subject
to reduction pursuant to Section 5.02(c) and (ii) any Class Unpaid Interest
Shortfall for such Class.
Interest-Only Certificates: Any Class of Certificates entitled to
distributions of interest, but no distributions of principal. The Class 1-A-WIO
and Class 2-A-WIO Certificates are the only Classes of Interest-Only
Certificates.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) that was liquidated in the
calendar month preceding the month of such Distribution Date and as to which the
applicable Servicer has certified (in accordance with the applicable Servicing
Agreement) that it has received all proceeds it expects to receive in connection
with the liquidation of such Mortgage Loan including the final disposition of an
REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or otherwise or
amounts received in connection with any condemnation or partial release of a
Mortgaged Property and any other proceeds received in connection with an REO
Property, less the sum of related unreimbursed Servicing Fees and Advances.
Loan Group: Either of Loan Group 1 or Loan Group 2.
Loan Group 1: The Group 1 Mortgage Loans.
Loan Group 2: The Group 2 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, the insurance policies, if any,
relating to a Mortgage Loan and the Mortgaged Property which secured a Mortgage
Loan and which has been acquired by foreclosure or deed in lieu of foreclosure.
Master Servicer: Xxxxx Fargo Bank Minnesota, National Association,
and its successors-in-interest and, if a successor master servicer is appointed
hereunder, such successor, as master servicer.
Master Servicer Fee: With respect to each Mortgage Loan and
Distribution Date, the amount of the fee payable to the Master Servicer, which
shall, for such Distribution Date, be equal to one-twelfth of the product of the
Master Servicer 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.
Master Servicer Fee Rate: With respect to each Mortgage Loan,
0.0125% per annum.
Master Servicing Officer: With respect to the Master Servicer, any
officer of the Master Servicer involved in, or responsible for, the
administration and master servicing of the Mortgage Loans whose name appears on
a list of servicing officers furnished to the Securities Administrator by the
Master Servicer, as such list may from time to time be amended.
Master Servicing Transfer Costs: All reasonable costs and expenses
incurred by the Trustee in connection with the transfer of master servicing from
a predecessor master servicer, including, without limitation, any costs or
expenses associated with the complete transfer of all master servicing data and
the completion, correction or manipulation of such master servicing data as may
be required by the Trustee to correct any errors or insufficiencies in the
master servicing data or otherwise to enable the Trustee to master service the
Mortgage Loans properly and effectively.
Master Servicer's Certificate: The monthly report required by
Section 4.01.
MERS: As defined in Section 2.01(b)(iii).
Monthly Form 8-K: As defined in Section 3.23.
Monthly Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan.
Moody's: Xxxxx'x Investors Service, Inc., or any successor thereto.
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on a Mortgaged Property securing a Mortgage Note or creating a first
lien on a leasehold interest.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: As to any Mortgage Loan, the per annum rate
of interest at which interest accrues on the principal balance of such Mortgage
Loan in accordance with the terms of the related Mortgage Note.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated July 30, 2003, between Bank of America, N.A., as seller, and
the Depositor, as purchaser.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to
time amended by the Master Servicer to reflect the addition of Substitute
Mortgage Loans and the deletion of Defective Mortgage Loans pursuant to the
provisions of this Agreement) transferred to the Trustee as part of the Trust
Estate and from time to time subject to this Agreement, attached hereto as
Exhibit D-1 and Exhibit D-2, setting forth the following information with
respect to each Mortgage Loan: (i) the Mortgage Loan identifying number; (ii) a
code indicating whether the Mortgaged Property is owner-occupied; (iii) the
property type for each Mortgaged Property; (iv) the original months to maturity
or the remaining months to maturity from the Cut-Off Date; (v) the Loan-to-Value
Ratio at origination; (vi) the Mortgage Interest Rate; (vii) the date on which
the first Monthly Payment was due on the Mortgage Loan, and, if such date is not
the Due Date currently in effect, such Due Date; (viii) the stated maturity
date; (ix) the amount of the Monthly Payment as of the Cut-Off Date; (x) the
paid-through date; (xi) the original principal amount of the Mortgage Loan;
(xii) the principal balance of the Mortgage Loan as of the close of business on
the Cut-Off Date, after application of payments of principal due on or before
the Cut-Off Date, whether or not collected, and after deduction of any payments
collected of scheduled principal due after the Cut-Off Date; (xiii) a code
indicating the purpose of the Mortgage Loan; (xiv) a code indicating the
documentation style; (xv) a code indicating the initial Servicer; and (xvi) the
Appraised Value. With respect to the Mortgage Loans in the aggregate, the
Mortgage Loan Schedule shall set forth the following information, as of the
Cut-Off Date: (i) the number of Mortgage Loans; (ii) the current aggregate
outstanding principal balance of the Mortgage Loans; (iii) the weighted average
Mortgage Rate of the Mortgage Loans; and (iv) the weighted average months to
maturity of the Mortgage Loans.
Mortgage Loans: Such of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 as from time to time are held as a part
of the Trust Estate (including any Substitute Mortgage Loans and REO Property),
the Mortgage Loans originally so held being identified in the Mortgage Loan
Schedule.
Mortgage Note: The originally executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan,
together with all riders thereto and amendments thereof.
Mortgaged Property: The underlying property securing a Mortgage
Loan, which may include Co-op Shares or residential long-term leases.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Interest Rate: As to any Mortgage Loan and Distribution
Date, such Mortgage Loan's Mortgage Interest Rate thereon on the first day of
the month preceding the month of the related Distribution Date reduced by the
sum of the Servicing Fee Rate and the Master Servicer Fee Rate.
Non-PO Percentage: As to any Discount Mortgage Loan, a fraction
(expressed as a percentage), the numerator of which is the Net Mortgage Interest
Rate as of the Cut-off Date of such Discount Mortgage Loan and the denominator
of which is 6.50% for each Group 1 Mortgage Loan and 6.00% for each Group 2
Mortgage Loan. As to any Mortgage Loan that is not a Discount Mortgage Loan,
100%.
Non-PO Principal Amount: As to any Distribution Date and Loan Group,
the sum of the applicable Non-PO 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 Seller pursuant to
the Mortgage Loan Purchase Agreement or a Servicer pursuant to the applicable
Servicing 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 (other than Excess Proceeds) allocable to recoveries of principal of
Mortgage Loans in such Loan Group that are not yet Liquidated Mortgage Loans
received by a Servicer during the calendar month preceding the month of such
Distribution Date, (e) with respect to each Mortgage Loan in such Loan Group
that became a Liquidated Mortgage Loan during the calendar month preceding the
month of such Distribution Date, the amount of Liquidation Proceeds (other than
Excess Proceeds) allocable to principal received by a Servicer with respect to
such Mortgage Loan during the calendar month preceding the month of such
Distribution Date and (f) all Principal Prepayments on the Mortgage Loans in
such Loan Group received by a Servicer during the calendar month preceding the
month of such Distribution Date.
Non-Supported Interest Shortfalls: As to any Distribution Date, the
amount, if any, by which the aggregate Prepayment Interest Shortfalls exceeds
the aggregate 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 applicable 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 (a) the Class 1-A-WIO Certificates
and any date of determination, the Class 1-A-WIO Notional Amount and (b) the
Class 2-A-WIO Certificates and any date of determination, the Class 2-A-WIO
Notional Amount.
Offered Certificates: The Class A, Class B-1, Class B-2 and Class
B-3 Certificates.
Officer's Certificate: A certificate signed by the Chairman of the
Board, Vice Chairman of the Board, President or a Vice President and by the
Treasurer, the Secretary or one of the Assistant Treasurers or Assistant
Secretaries, or any other duly authorized officer of the Depositor or the Master
Servicer, as the case may be, and delivered to the Trustee or the Securities
Administrator, as the case may be.
Opinion of Counsel: A written opinion of counsel acceptable to the
Trustee if such opinion is delivered to the Trustee, or acceptable to the
Securities Administrator if such opinion is delivered to the Securities
Administrator, who may be counsel for the Depositor or the Master Servicer,
except that any opinion of counsel relating to the qualification of the Trust
Estate as two 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 1.66%
Class B-2 0.96%
Class B-3 0.50%
Class B-4 0.35%
Class B-5 0.25%
Class B-6 0.00%
Original Subordinate Certificate Balance: $5,858,814.00.
OTS: The Office of Thrift Supervision.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan which
was not the subject of a Principal Prepayment in Full prior to such Due Date,
which did not become a Liquidated Mortgage Loan prior to such Due Date and which
was not purchased from the Trust prior to such Due Date pursuant to Sections
2.02.
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: As to each Class of interest-bearing
Certificates, the per annum rate set forth or defined 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 the Class 1-A-WIO and Class 2-A-WIO Certificates) by the
Initial Class Certificate Balance or Initial Notional Amount, as applicable, of
the Class of which such Certificate is a part.
Periodic Advance: With respect to each Servicer, shall have the
meaning given to the term "Monthly Advance" in the applicable Servicing
Agreement.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by the
United States, FHLMC, FNMA or any agency or instrumentality of the United
States when such obligations are backed by the full faith and credit of
the United States; provided that such obligations of FHLMC or FNMA shall
be limited to senior debt obligations and mortgage participation
certificates other than investments in mortgage-backed or mortgage
participation securities with yields evidencing extreme sensitivity to the
rate of principal payments on the underlying mortgages, which shall not
constitute Permitted Investments hereunder;
(ii) repurchase agreements on obligations specified in clause (i)
maturing not more than one month from the date of acquisition thereof with
a corporation incorporated under the laws of the United States or any
state thereof rated not lower than "A-1" by S&P and "P-1" by Moody's;
(iii) federal funds, certificates of deposit, demand deposits, time
deposits and bankers' acceptances (which shall each have an original
maturity of not more than 90 days and, in the case of bankers'
acceptances, shall in no event have an original maturity of more than 365
days or a remaining maturity of more than 30 days) denominated in United
States dollars of any U.S. depository institution or trust company
incorporated under the laws of the United States or any state thereof,
rated not lower than "A-1" by S&P and "P-1" by Moody's;
(iv) commercial paper (having original maturities of not more than
365 days) of any corporation incorporated under the laws of the United
States or any state thereof which is rated not lower than "A-1" by S&P and
"P-1" by Moody's;
(v) investments in money market funds (including funds of the
Trustee, the Securities Administrator or their affiliates, or funds for
which an affiliate of the Trustee or the Securities Administrator acts as
advisor, as well as funds for which the Trustee and its affiliates or the
Securities Administrator and its affiliates may receive compensation)
rated either "AAAm" or "AAAm G" by S&P and "Aaa" by Moody's or otherwise
approved in writing by each Rating Agency; and
(vi) other obligations or securities that are acceptable to each
Rating Agency and, as evidenced by an Opinion of Counsel obtained by the
Master Servicer, will not affect the qualification of the Trust Estate as
a REMIC;
provided, however, that no instrument shall be a Permitted Investment if it
represents either (a) the right to receive only interest payments with respect
to the underlying debt instrument or (b) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest with respect to such instrument provide a yield to
maturity greater than 120% of the yield to maturity at par of such underlying
obligations.
Permitted Transferee: Any Person other than (i) the United States,
or any State or any political subdivision thereof, or any agency or
instrumentality of any of the foregoing, (ii) a foreign government,
international organization or any agency or instrumentality of either of the
foregoing, (iii) an organization which is exempt from tax imposed by Chapter 1
of the Code (including the tax imposed by Section 511 of the Code on unrelated
business taxable income) (except certain farmers' cooperatives described in Code
Section 521), (iv) rural electric and telephone cooperatives described in Code
Section 1381(a)(2)(C), (v) a Person with respect to whom the income on a
Residual Certificate is allocable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of such Person or
any other Person, and (vi) any other Person so designated by the Master 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 B-4,
Class B-5 and Class B-6 Certificates.
Plan: As defined in Section 6.02(e).
PO Percentage: As to any Discount Mortgage Loan, 100% minus the
Non-PO Percentage for such Mortgage Loan. As to any Mortgage Loan that is not a
Discount Mortgage Loan, 0%.
PO Principal Amount: As to any Distribution Date and Loan Group, the
sum of the applicable PO 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, the Seller pursuant to the Mortgage Loan Purchase Agreement or a
Servicer pursuant to the applicable Servicing 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 by a Servicer during the calendar month preceding the month of such
Distribution Date, (e) with respect to each Mortgage Loan in such Loan Group
that became a Liquidated Mortgage Loan during the calendar month preceding the
month of such Distribution Date, the amount of Liquidation Proceeds (other than
any Excess Proceeds) allocable to principal received by a Servicer with respect
to such Mortgage Loan during the calendar month preceding the month of such
Distribution Date with respect to such Mortgage Loan and (f) all Principal
Prepayments on the Mortgage Loans in such Loan Group received by a Servicer
during the calendar month preceding the month of such Distribution Date.
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
Master Servicer Fee and the Servicer 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
Compensating Interest made by the applicable Servicer in respect of such
Distribution Date deposited to the Certificate Account pursuant to Section
3.09(c)(vi); (ii) all Liquidation Proceeds (other than Excess Proceeds) received
on the Mortgage Loans in such Loan Group during the preceding calendar month and
deposited to the Certificate Account pursuant to Section 3.09(c)(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
Certificate Account pursuant to Section 3.09(c)(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 remitted
on the related Servicer Remittance Date pursuant to Section 3.09(c)(vii); (v)
any other amounts in the Certificate Account deposited therein pursuant to
Section 3.09(c)(iv), (v) and (viii) in respect of such Distribution Date and
such Loan Group and (vi) any Reimbursement Amount required to be included
pursuant to Section 5.02(e); over (b) any (i) amounts permitted to be withdrawn
from the Certificate Account pursuant to clauses (i) through (viii), inclusive,
of Section 3.12(a) 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-PO 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-PO Percentage of such Mortgage Loan multiplied by its Stated
Principal Balance.
Premium Mortgage Loan: Any Group 1 Premium Mortgage Loan or Group 2
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 Mortgage Insurance Policy: Each policy of primary mortgage
guaranty insurance or any replacement policy therefor with respect to any
Mortgage Loan, in each case issued by an insurer acceptable to FNMA or FHLMC.
Principal Only Certificates: Any Class of Certificates entitled to
distributions of principal, but to no distributions of interest. The Class A-PO
Certificates are the only Principal Only Certificates.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan (other than Liquidation Proceeds) which is received in advance
of its scheduled Due Date and is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment of the entire
principal balance of a Mortgage Loan.
Private Certificates: The Class B-4, Class B-5 and Class B-6
Certificates.
Pro Rata Share: As to any Distribution Date and any Class of
Subordinate Certificates that is not a Restricted Class, the portion of the
Subordinate Principal Distribution Amount allocable to such Class, equal to the
product of the Subordinate Principal Distribution Amount for such Distribution
Date and a fraction, the numerator of which is the related Class Certificate
Balance thereof and the denominator of which is the aggregate Class Certificate
Balance of the Subordinate Certificates that are not Restricted Classes. The Pro
Rata Share of a Restricted Class shall be 0%.
Rating Agency: Each of Xxxxx'x and S&P. If either such organization
or a successor is no longer in existence, "Rating Agency" shall be such
nationally recognized statistical rating organization, or other comparable
Person, as is designated by the Depositor, notice of which designation shall be
given to the Trustee, the Master Servicer and the Securities Administrator.
References herein to a given rating or rating category of a Rating Agency shall
mean such rating category without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an
amount as of the date of such liquidation, equal to (i) the unpaid principal
balance of the Liquidated Mortgage Loan as of the date of such liquidation, plus
(ii) interest at the Net Mortgage Interest Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any, received during
the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Net Mortgage Interest Rate and to principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan that has become the
subject of a Deficient Valuation, if the principal amount due under the related
Mortgage Note has been reduced, the difference between the principal balance of
the Mortgage Loan outstanding immediately prior to such Deficient Valuation and
the principal balance of the Mortgage Loan as reduced by the Deficient
Valuation. With respect to each Mortgage Loan that has become the subject of a
Debt Service Reduction and any Distribution Date, the amount, if any, by which
the principal portion of the related Monthly Payment has been reduced.
Record Date: The last day of the month (or, if such day is not a
Business Day, the preceding Business Day) preceding the month of the related
Distribution Date.
Refinance Mortgage Loan: Any Mortgage Loan the proceeds of which
were not used to purchase the related Mortgaged Property.
Regular Certificates: As defined in the Preliminary Statement
hereto.
Reimbursement Amount: As defined in Section 2.02.
Related Group: For Loan Group 1, Group 1 and for Loan Group 2, Group
2.
Related Loan Group: For Group 1 and the Class 1-A-PO Component, Loan
Group 1 and for Group 2 and the Class 2-A-PO Component, Loan Group 2.
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.
REO Property: A Mortgaged Property acquired by the Servicer
servicing the related Mortgage Loan on behalf of the Trust through foreclosure
or deed-in-lieu of foreclosure in connection with a defaulted Mortgage Loan.
Repurchase Price: As to any Defective Mortgage Loan repurchased on
any date pursuant to Sections 2.02, an amount equal to (a) in the case of the
Seller, the sum of (i) the unpaid principal balance thereof and (ii) the unpaid
accrued interest thereon at the applicable Mortgage Interest Rate from the Due
Date to which interest was last paid by the Mortgagor to the first day of the
month following the month in which such Mortgage Loan became eligible to be
repurchased and (b) in the case of a Servicer, the sum of (i) the Stated
Principal Balance of the Mortgage Loan and (ii) interest on such Stated
Principal Balance at the Mortgage Interest Rate from the date on which interest
has last been paid and distributed through the last day of the month in which
such repurchase takes place, less (x) amounts received or advanced in respect of
such repurchased Mortgage Loan which are being held in the applicable Servicer
Custodial Account for distribution in the month of repurchase and (y) if such
Servicer is servicing such Mortgage Loan under the related Servicing Agreement,
the Servicing Fee for such Mortgage Loan.
Request for Release: The Request for Release submitted by a Servicer
to the Trustee or the Custodian on behalf of the Trustee, substantially in the
form of Exhibit E.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to time under this
Agreement in respect of such Mortgage Loan.
Residual Certificate: The Class 1-A-R and Class 1-A-LR Certificates.
Responsible Officer: When used with respect to the Trustee or the
Securities Administrator, any officer of the Corporate Trust Department of the
Trustee or the Securities Administrator, as applicable, including any Senior
Vice President, any Vice President, any Assistant Vice President, any Assistant
Secretary, any Trust Officer or Assistant Trust Officer, or any other officer of
the Trustee or Securities Administrator, as applicable, customarily performing
functions similar to those performed by any of the above designated officers and
having responsibility for the administration of this Agreement.
Restricted Classes: As defined in Section 5.02(d).
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor thereto.
Securities Administrator: Xxxxx Fargo Bank Minnesota, National
Association, and its successors-in-interest and, if a successor securities
administrator is appointed hereunder, such successor, as securities
administrator.
Seller: Bank of America, N.A., a national banking association, as
seller of the Mortgage Loans under the Mortgage Loan Purchase Agreement.
Senior Certificates: The Class A Certificates.
Senior Credit Support Depletion Date: The date on which the
aggregate Class Certificate Balance of the Subordinate Certificates is reduced
to zero.
Senior Percentage: With respect to any Distribution Date and Loan
Group, the percentage, carried to at least six places rounded up, obtained by
dividing the aggregate Class Certificate Balance of the Class A Certificates of
the related Group (but not the Class A-PO Component of such Group) immediately
prior to such Distribution Date by the Pool Stated Principal Balance (Non-PO
Portion) of such Loan Group immediately prior to such Distribution Date.
Senior Prepayment Percentage: For any Distribution Date and Loan
Group during the five years beginning on the first Distribution Date, 100%. The
Senior Prepayment Percentage for any Loan Group and for any Distribution Date
occurring on or after the fifth anniversary of the first Distribution Date will,
except as provided herein, be as follows: for any Distribution Date in the first
year thereafter, the Senior Percentage 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 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 and Loan Group 2 for such Distribution Date will once again equal 100%).
Notwithstanding the foregoing, no decrease in the Senior Prepayment Percentage
for either Loan Group will occur 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-PO Percentage of all amounts described in clauses (a) through (d)
of the definition of "Non-PO Principal Amount" for such Distribution Date and
Loan Group and (ii) the Senior Prepayment Percentage for such Loan Group of the
applicable Non-PO Percentage of the amounts described in clauses (e) and (f) of
the definition of "Non-PO Principal Amount" for such Distribution Date and Loan
Group.
Senior Step Down Conditions: As of any Distribution Date as to which
any decrease in the Senior Prepayment Percentage for either Loan Group applies,
(i) the outstanding principal balance of all Mortgage Loans (including, for this
purpose, any Mortgage Loans in foreclosure, any REO Property and each Mortgage
Loan for which the mortgagor had filed for bankruptcy after the Closing Date)
delinquent 60 days or more (averaged over the preceding six month period), as a
percentage of the aggregate Class Certificate Balance of the 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
--------------------------- -------------------
August 2008 through July 2009 30%
August 2009 through July 2010 35%
August 2010 through July 2011 40%
August 2011 through July 2012 45%
August 2012 and thereafter 50%
Servicer: Either of ABN AMRO Mortgage Group, Inc. and SunTrust
Mortgage, Inc., each in their capacity as servicer of the Mortgage Loans, or any
successor servicer appointed as herein provided.
Servicer Advance Date: As to any Distribution Date, the Business Day
preceding the Servicer Remittance Date.
Servicer Custodial Accounts: The separate accounts created and
maintained by each of the Servicers pursuant to the applicable Servicing
Agreement.
Servicer Remittance Date: As to any Distribution Date, the 18th day
(or, if such day is not a Business Day, the first Business Day immediately
following such 18th day) immediately preceding such Distribution Date.
Servicing Advances: With respect to each Servicer, as defined in the
applicable Servicing Agreement.
Servicing Agreements: Either of the ABN AMRO Servicing Agreement and
the SunTrust Servicing Agreement.
Servicing Fee: With respect to each Servicer, as defined in the
applicable Servicing Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan, as defined
in the applicable Servicing Agreement.
Servicing File: As defined in the applicable Servicing Agreement.
Servicing Officer: With respect to each Servicer, as defined in the
related Servicing Agreement.
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 between the principal balances of the Class 1-LS Interest and the Class
2-LS Interest, equal to the ratio between the Group Subordinate Amount of Loan
Group 1 and the Group Subordinate Amount of Loan Group 2.
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 and
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-PO Percentage
of all amounts described in clauses (a) through (d) of the definition of "Non-PO
Principal Amount" for such Distribution Date and Loan Group and (ii) the
Subordinate Prepayment Percentage for such Loan Group of the applicable Non-PO
Percentage of the amounts described in clauses (e) and (f) of the definition of
"Non-PO Principal Amount" for such Distribution Date and Loan Group.
Substitute Mortgage Loan: A Mortgage Loan substituted for a
Defective Mortgage Loan which must, on the date of such substitution (i) have a
Stated Principal Balance, after deduction of the principal portion of the
Monthly Payment due in the month of substitution, not in excess of, and not more
than 10% less than, the Stated Principal Balance of the Defective Mortgage Loan;
(ii) have a Net Mortgage Interest Rate equal to that of the Defective Mortgage
Loan; (iii) have a Loan-to-Value Ratio not higher than that of the Defective
Mortgage Loan; (iv) have a remaining term to maturity not greater than (and not
more than one year less than) that of the Defective Mortgage Loan; and (v)
comply with each Mortgage Loan representation and warranty set forth in the
Mortgage Loan Purchase Agreement and the Servicing Agreements. 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.
SunTrust: SunTrust Mortgage, Inc.
SunTrust Servicing Agreement: The Flow Sale and Servicing Agreement,
dated as of May 1, 2002, between Banc of America Mortgage Capital Corporation
and SunTrust, as amended by the Assignment, Assumption and Recognition
Agreement, dated July 30, 2003, among Bank of America, N.A., the Depositor, the
Trustee and SunTrust.
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 to at least six places rounded up, obtained by dividing the
sum of the Class Certificate Balances of the Group 1 Senior Certificates and the
Group 2 Senior Certificates immediately prior to such Distribution Date by the
aggregate Pool Stated Principal Balance (Non-PO Portion) of both 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, which shall be named
"Banc of America Funding 2003-2 Trust."
Trust Estate: The corpus of the Trust created to the extent
described herein, consisting of the Mortgage Loans, such assets as shall from
time to time be identified as deposited in the Servicer Custodial Accounts in
accordance with the Servicing Agreements or the Certificate Account, in
accordance with this Agreement, REO Property, the Primary Mortgage Insurance
Policies and any other Required Insurance Policy.
Trustee: Wachovia Bank, National Association, and its
successors-in-interest and, if a successor trustee is appointed hereunder, such
successor, as trustee.
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-LWIO
Interest, Class 2-L Interest, Class 2-LS Interest, Class 2-LP Interest, Class
2-LWIO Interest are Uncertificated Lower-Tier Interests.
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 Securities Administrator pursuant to
Section 3.09(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 Certificate, (b) 1% of the all Voting Rights shall be allocated to
the Holders of the Class 1-A-WIO Certificates, (c) 1% of all Voting Rights shall
be allocated to the Holders of the Class 2-A-WIO Certificates and (d) the
remaining Voting Rights shall be allocated among Holders of the remaining
Classes of Certificates in proportion to the Certificate Balances of their
respective Certificates on such date.
Section 1.02 Interest Calculations. All calculations of interest
will be made on a 360-day year consisting of twelve 30-day months. All dollar
amounts calculated hereunder shall be rounded to the nearest xxxxx with one-half
of one xxxxx being rounded down.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee on behalf of the Trust
for the benefit of the Certificateholders, without recourse, all the right,
title and interest of the Depositor in and to the Mortgage Loans, including all
interest and principal received on or with respect to the Mortgage Loans (other
than payments of principal and interest due and payable on the Mortgage Loans on
or before the Cut-Off Date) and the Depositor's rights under the Mortgage Loan
Purchase Agreement, including the rights of the Depositor as assignee of the
Seller with respect to the Seller's rights under the Servicing Agreements. The
foregoing sale, transfer, assignment and set over does not and is not intended
to result in a creation of an assumption by the Trustee of any obligation of the
Depositor or any other Person in connection with the Mortgage Loans or any
agreement or instrument relating thereto, except as specifically set forth
herein.
(b) In connection with such transfer and assignment, the Depositor
has delivered or caused to be delivered to the Trustee, for the benefit of the
Certificateholders, the following documents or instruments with respect to each
Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed by manual or facsimile
signature in the following form: "Pay to the order of Wachovia Bank,
National Association, as trustee for holders of Banc of America Funding
Corporation Mortgage Pass-Through Certificates, Series 2003-2, without
recourse," with all necessary intervening endorsements showing a complete
chain of endorsement from the originator to the Trustee (each such
endorsement being sufficient to transfer all right, title and interest of
the party so endorsing, as noteholder or assignee thereof, in and to that
Mortgage Note);
(ii) except as provided below, the original recorded Mortgage with
evidence of a recording thereon, or if any such Mortgage has not been
returned from the applicable recording office or has been lost, or if such
public recording office retains the original recorded Mortgage, a copy of
such Mortgage certified by the Depositor as being a true and correct copy
of the Mortgage;
(iii) subject to the provisos at the end of this paragraph, a duly
executed Assignment of Mortgage to "Wachovia Bank, National Association,
as trustee for the holders of Banc of America Funding Corporation Mortgage
Pass-Through Certificates, Series 2003-2" (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 Master Servicer
shall enforce the obligations of the applicable Servicer to take all
actions as are necessary to cause the Trust to be shown as the owner of
the related Mortgage Loan on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages
maintained by MERS;
(iv) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon, if any;
(v) 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 applicable Servicer to retain the completed Assignment
of Mortgage for recording as described below, unless such Mortgage has been
recorded in the name of MERS or its designee. In addition, if the Depositor is
unable to deliver or cause the delivery of any original Mortgage Note due to the
loss of such original Mortgage Note, the Depositor may deliver a copy of such
Mortgage Note, together with a lost note affidavit, and shall thereby be deemed
to have satisfied the document delivery requirements of this Section 2.01(b). As
set forth on Exhibit L attached hereto is a list of all states where recordation
is required by either Rating Agency to obtain the initial ratings of the
Certificates. The Securities Administrator, the Trustee and the Custodian may
rely and shall be protected in relying upon the information contained in such
Exhibit L.
If in connection with any Mortgage Loans, the Depositor cannot
deliver (A) the Mortgage, (B) all interim recorded assignments, (C) all
assumption, modification, consolidation or extension agreements, if any, or (D)
the lender's title policy (together with all riders thereto) satisfying the
requirements of clause (ii), (iii), (iv) or (v) above, respectively,
concurrently with the execution and delivery hereof because such document or
documents have not been returned from the applicable public recording office in
the case of clause (ii), (iii) or (iv) above, or because the title policy has
not been delivered to either the Servicer, the Seller or the Depositor by the
applicable title insurer in the case of clause (v) above, the Depositor shall
promptly deliver or cause to be delivered to the Trustee or the Custodian on
behalf of the Trustee, in the case of clause (ii), (iii) or (iv) above, such
Mortgage, such interim assignment or such assumption, modification,
consolidation or extension agreement, as the case may be, with evidence of
recording indicated thereon upon receipt thereof from the public recording
office, but in no event shall any such delivery of any such documents or
instruments be made later than one year following the Closing Date, unless, in
the case of clause (ii), (iii) or (iv) above, there has been a continuing delay
at the applicable recording office or, in the case of clause (v), 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
applicable 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 Depositor shall prepare,
execute and deliver or cause to be prepared, executed and delivered, on behalf
of the Trust, such a document to the public recording office.
As promptly as practicable subsequent to such transfer and
assignment, the Master Servicer shall (except for any Mortgage which has been
recorded in the name of MERS or its designee) enforce the obligations of the
related Servicer pursuant to the related Servicing Agreement to (I) cause each
Assignment of Mortgage to be in proper form for recording in the appropriate
public office for real property records within the time period required in the
applicable Servicing Agreement and (II) at the Depositor's expense, cause to be
delivered for recording in the appropriate public office for real property
records the Assignments of the Mortgages to the Trustee, except that, with
respect to any Assignment of a Mortgage as to which the related Servicer has not
received the information required to prepare such assignment in recordable form,
such Servicer's obligation to do so and to deliver the same for such recording
shall be as soon as practicable after receipt of such information and in
accordance with the applicable Servicing Agreement and, no recording of an
Assignment of Mortgage will be required in a state if either (i) the Depositor
furnishes to the Trustee and the Securities Administrator an unqualified Opinion
of Counsel reasonably acceptable to the Trustee and the Securities Administrator
to the effect that recordation of such assignment is not necessary under
applicable state law to preserve the Trustee's interest in the related Mortgage
Loan against the claim of any subsequent transferee of such Mortgage Loan or any
successor to, or creditor of, the Depositor or the originator of such Mortgage
Loan or (ii) the recordation of an Assignment of Mortgage in such state is not
required by either Rating Agency in order to obtain the initial ratings on the
Certificates on the Closing Date.
In the case of Mortgage Loans that have been prepaid in full as of
the Closing Date, the Depositor, in lieu of delivering the above documents to
the Trustee, or the Custodian on the Trustee's behalf, will cause the applicable
Servicer to deposit in the Certificate Account the portion of such payment that
is required to be deposited in the Certificate Account pursuant to Section 3.09.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.
Subject to the provisions of the following paragraph, the Trustee declares that
it, or the Custodian as its agent, will hold the documents referred to in
Section 2.01 and the other documents delivered to it constituting the Mortgage
Files, and that it will hold such other assets as are included in the Trust
Estate delivered to it, in trust for the exclusive use and benefit of all
present and future Certificateholders. Upon execution and delivery of this
document, the Trustee shall deliver or cause the Custodian to deliver to the
Depositor and the Master 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 Master Servicer a
certification in the form of Exhibit N hereto (the "Final Certification") to the
effect that, as to each Mortgage Loan listed in the Mortgage Loan Schedule,
except as may be specified in a list of exceptions attached to such Final
Certification, such Mortgage File contains all of the items required to be
delivered pursuant to Section 2.01(b).
If, in the course of such review, the Trustee or the Custodian finds
any document constituting a part of a Mortgage File which does not meet the
requirements of Section 2.01 or is omitted from such Mortgage File or if the
Depositor, the Master Servicer, the Trustee, the Securities Administrator or the
Custodian discovers a breach by a Servicer or the Seller of any representation,
warranty or covenant under the Servicing Agreements or the Mortgage Loan
Purchase Agreement in respect of any Mortgage Loan and such breach materially
adversely affects the interest of the Certificateholders in the related Mortgage
Loan (provided that any such breach that causes the Mortgage Loan not to be a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the code shall
be deemed to materially and adversely affect the interests of the
Certificateholders), then such party shall promptly so notify or cause the
Custodian to promptly so notify the Master Servicer, the Seller, such Servicer
and the Depositor of such failure to meet the requirements of Section 2.01 or of
such breach and request that the applicable Servicer or the Seller, as
applicable, deliver such missing documentation or cure such defect or breach
within 90 days of its discovery or its receipt of notice of any such failure to
meet the requirements of Section 2.01 or of such breach. If the Seller or the
applicable Servicer, as applicable, does not deliver such missing document or
cure such defect or breach in all material respects during such period, the
Trustee shall enforce the applicable Servicer's or Seller's obligation, as the
case may be, under the applicable Servicing Agreement or the Mortgage Loan
Purchase Agreement, as applicable, and cause the applicable Servicer or Seller,
as applicable, to either (a) solely in the case of the Seller, substitute for
the related Mortgage Loan a Substitute Mortgage Loan, which substitution shall
be accomplished in the manner and subject to the conditions set forth below or
(b) purchase such Mortgage Loan from the Trust at the Repurchase Price for such
Mortgage Loan; provided, however, that in no event shall such a substitution
occur more than two years from the Closing Date; provided, further, that such
substitution or repurchase must occur within 90 days of when such defect was
discovered if such defect will cause the Mortgage Loan not to be a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code.
In performing any such review, the Trustee or the Custodian may
conclusively rely on the purported genuineness of any such document and any
signature thereon. It is understood that the scope of the Trustee's or the
Custodian's review of the Mortgage Files is limited solely to confirming that
the documents listed in Section 2.01 have been received and further confirming
that any and all documents delivered pursuant to Section 2.01 appear on their
face to have been executed and relate to the Mortgage Loans identified in the
Mortgage Loan Schedule based solely upon the review of items (i) and (xi) in the
Mortgage Loan Schedule. Neither the Trustee nor the Custodian shall have any
responsibility for determining whether any document is valid and binding,
whether the text of any assignment or endorsement is in proper or recordable
form, whether any document has been recorded in accordance with the requirements
of any applicable jurisdiction, or whether a blanket assignment is permitted in
any applicable jurisdiction.
In the event of a discovery of a breach of any representation or
warranty of a Servicer or the Seller, the Trustee shall enforce the rights of
the Trust under the Servicing Agreements and the Mortgage Loan Purchase
Agreement for the benefit of the Certificateholders. In the event of a breach of
the representations or warranties with respect to the Mortgage Loans set forth
in a Servicing Agreement, the Trustee shall enforce the right of the Trust to be
indemnified for such breach of representation or warranty. In addition, if a
breach of the representation set forth in clause (k) of paragraph 3 of the
Mortgage Loan Purchase Agreement occurs as a result of a violation of an
applicable predatory or abusive lending law, the Trustee shall enforce the right
of the Trust to reimbursement by the Seller for all costs or damages incurred by
the Trust as a result of the violation of such law (such amount, the
"Reimbursement Amount"). It is understood and agreed that, except for any
indemnification provided in the Servicing Agreements and the payment of any
Reimbursement Amount, the obligation of a Servicer or the Seller to cure or to
repurchase (or in the case of the Seller, to substitute for) any Mortgage Loan
as to which a document is missing, a material defect in a constituent document
exists or as to which such a breach has occurred and is continuing shall
constitute the sole remedy against a Servicer or the Seller in respect of such
omission, defect or breach available to the Trustee on behalf of the
Certificateholders.
With respect to the representations and warranties set forth in the
Mortgage Loan Purchase Agreement that are made to the best of the Seller's
knowledge or as to which the Seller had no knowledge, if it is discovered by the
Depositor, the Master Servicer or the Trustee that the substance of such
representation or warranty is inaccurate and such inaccuracy materially and
adversely affects the interest of the Certificateholders in the related Mortgage
Loan then, notwithstanding the Seller's lack of knowledge with respect to the
substance of such representation or warranty being inaccurate as the time the
representation or warranty was made, such in accuracy shall be deemed a breach
of the applicable representation or warranty.
It is understood and agreed that the representations and warranties
set forth in the Mortgage Loan Purchase Agreement shall survive delivery of the
Mortgage Files to the Trustee or the Custodian and shall inure to the benefit of
the Certificateholders notwithstanding any restrictive or qualified endorsement
or assignment. It is understood and agreed that the obligations of the Seller
set forth in this Section 2.02 to cure, substitute for or repurchase a Mortgage
Loan pursuant to the Mortgage Loan Purchase Agreement constitute the sole
remedies available to the Certificateholders and to the Trustee on their behalf
respecting a breach of the representations and warranties contained in the
Mortgage Loan Purchase Agreement.
The representations and warranties of each Servicer with respect to
the applicable Mortgage Loans in the related Servicing Agreement, which have
been assigned to the Trustee hereunder, were made as of the date specified in
such Servicing Agreement. To the extent that any fact, condition or event with
respect to a Mortgage Loan constitutes a breach of both (i) a representation or
warranty of a Servicer under the related Servicing Agreement and (ii) a
representation or warranty of the Seller under the Mortgage Loan Purchase
Agreement, the only right or remedy of the Trustee or of any Certificateholder
shall be the Trustee's right to enforce the obligations of the applicable
Servicer under any applicable representation or warranty made by it. The Trustee
acknowledges that the Seller shall have no obligation or liability with respect
to any breach of a representation or warranty made by it with respect to the
Mortgage Loans if the fact, condition or event constituting such breach also
constitutes a breach of a representation or warranty made by the applicable
Servicer in the applicable Servicing Agreement, without regard to whether such
Servicer fulfills its contractual obligations in respect of such representation
or warranty. The Trustee further acknowledges that the Depositor shall have no
obligation or liability with respect to any breach of any representation or
warranty with respect to the Mortgage Loans (except as set forth in Section
2.04) under any circumstances.
With respect to each Substitute Mortgage Loan the Seller shall
deliver to the Trustee, for the benefit of the Certificateholders, the Mortgage
Note, the Mortgage, the related Assignment of Mortgage (except for any Mortgage
which has been recorded in the name of MERS or its designee), and such other
documents and agreements as are otherwise required by Section 2.01, with the
Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01. No
substitution is permitted to be made in any calendar month after the
Determination Date for such month. Monthly Payments due with respect to any such
Substitute Mortgage Loan in the month of substitution shall not be part of the
Trust Estate. For the month of substitution, distributions to Certificateholders
will include the Monthly Payment due for such month on any Defective Mortgage
Loan for which the Depositor has substituted a Substitute Mortgage Loan.
The Master Servicer shall amend the Mortgage Loan Schedule for the
benefit of the Certificateholders to reflect the removal of each Mortgage Loan
that has become a Defective Mortgage Loan and the substitution of the Substitute
Mortgage Loan or Loans and the Master Servicer shall deliver the amended
Mortgage Loan Schedule to the Securities Administrator, the Trustee and the
Custodian. Upon such substitution, each Substitute Mortgage Loan shall be
subject to the terms of this Agreement in all respects, and the Seller shall be
deemed to have made to the Trustee with respect to such Substitute Mortgage
Loan, as of the date of substitution, the representations and warranties made
pursuant to the Mortgage Loan Purchase Agreement. Upon any such substitution and
the deposit to the Certificate Account of any required Substitution Adjustment
Amount (as described in the next paragraph) and receipt of a Request for
Release, the Trustee shall release, or shall direct the Custodian to release,
the Mortgage File relating to such Defective Mortgage Loan to the Seller and
shall execute and deliver at the Seller's direction such instruments of transfer
or assignment prepared by the Seller, in each case without recourse, as shall be
necessary to vest title in the Seller, or its designee, to the Trustee's
interest in any Defective Mortgage Loan substituted for pursuant to this Section
2.02.
For any month in which the Seller substitutes one or more Substitute
Mortgage Loans for one or more Defective Mortgage Loans, the amount (if any) by
which the aggregate principal balance of all such Substitute Mortgage Loans in a
Loan Group as of the date of substitution is less than the aggregate Stated
Principal Balance of all such Defective Mortgage Loans in a Loan Group (after
application of the principal portion of the Monthly Payments due in the month of
substitution) (the "Substitution Adjustment Amount") plus an amount equal to the
aggregate of any unreimbursed Advances with respect to such Defective Mortgage
Loans shall be remitted to the Certificate Account by the Seller on or before
the Servicer Remittance Date for the Distribution Date in the month succeeding
the calendar month during which the related Mortgage Loan is required to be
purchased or replaced hereunder. The Repurchase Price of any repurchase and the
Substitution Adjustment Amount, if any, shall be deposited in the Certificate
Account.
The Trustee shall retain or shall cause the Custodian to retain
possession and custody of each Mortgage File in accordance with and subject to
the terms and conditions set forth herein. The Master Servicer shall cause to be
promptly delivered 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 Master
Servicer's possession from time to time.
The Trustee or the Custodian, on behalf of the Trustee, shall be
under no duty or obligation (i) to inspect, review or examine any such
documents, instruments, certificates or other papers to determine that they are
genuine, enforceable, or appropriate for the represented purpose or that they
are other than what they purport to be on their face or (ii) to determine
whether any Mortgage File should include any of the documents specified in
Section 2.01(b)(iv), (vi), (vii), (viii) and (ix).
Section 2.03 Representations, Warranties and Covenants of the Master
Servicer.
The Master Servicer hereby makes the following representations and
warranties to the Depositor, the Securities Administrator and the Trustee, as of
the Closing Date:
(i) The Master Servicer is a national banking association duly
chartered and validly existing in good standing under the laws of the
United States of America and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and in good
standing in each 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 Master Servicer. The Master
Servicer has power and authority to execute and deliver this Agreement and
to perform in accordance herewith; the execution, delivery and performance
of this Agreement (including all instruments of transfer to be delivered
pursuant to this Agreement) by the Master Servicer and the consummation of
the transactions contemplated hereby have been duly and validly
authorized. This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, evidences the valid, binding and
enforceable obligation of the Master Servicer, subject to applicable law
except as enforceability may be limited by (A) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other similar
laws affecting the enforcement of the rights of creditors and (B) general
principles of equity, whether enforcement is sought in a proceeding in
equity or at law. All requisite corporate action has been taken by the
Master Servicer to make this Agreement valid and binding upon the Master
Servicer in accordance with its terms.
(ii) No consent, approval, authorization or order is required for
the transactions contemplated by this Agreement from any court,
governmental agency or body, or federal or state regulatory authority
having jurisdiction over the Master Servicer is required or, if required,
such consent, approval, authorization or order has been or will, prior to
the Closing Date, be obtained.
(iii) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master Servicer
and will not result in the breach of any term or provision of the articles
of incorporation or by-laws of the Master Servicer or result in the breach
of any term or provision of, or conflict with or constitute a default
under or result in the acceleration of any obligation under, any
agreement, indenture or loan or credit agreement or other instrument to
which the Master Servicer or its property is subject, or result in the
violation of any law, rule, regulation, order, judgment or decree to which
the Master Servicer or its property is subject.
(iv) There is no action, suit, proceeding or investigation pending
or, to the best knowledge of the Master Servicer, threatened against the
Master Servicer which, either individually or in the aggregate, would
result in any material adverse change in the business, operations,
financial condition, properties or assets of the Master Servicer, or in
any material impairment of the right or ability of the Master Servicer to
carry on its business substantially as now conducted or which would draw
into question the validity of this Agreement or the Mortgage Loans or of
any action taken or to be taken in connection with the obligations of the
Master Servicer contemplated herein, or which would materially impair the
ability of the Master Servicer to perform under the terms of this
Agreement.
The representations and warranties made pursuant to this Section
2.03 shall survive delivery of the respective Mortgage Files to the Trustee for
the benefit of the Certificateholders.
Section 2.04 Representations and Warranties of the Depositor as to
the Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee with
respect to the Mortgage Loans or each Mortgage Loan, as the case may be, as of
the date hereof or such other date set forth herein that as of the Closing Date:
(i) Immediately prior to the transfer and assignment contemplated
herein, the Depositor was the sole owner and holder of the Mortgage Loans.
The Mortgage Loans were not assigned or pledged by the Depositor and the
Depositor had good and marketable title thereto, and the Depositor had
full right to transfer and sell the Mortgage Loans to the Trustee free and
clear of any encumbrance, participation interest, lien, equity, pledge,
claim or security interest and had full right and authority subject to no
interest or participation in, or agreement with any other party to sell or
otherwise transfer the Mortgage Loans.
(ii) As of the Closing Date, the Depositor has transferred all
right, title and interest in the Mortgage Loans to the Trustee on behalf
of the Trust.
(iii) As of the Closing Date, the Depositor has not transferred the
Mortgage Loans to the Trustee on behalf of the Trust with any intent to
hinder, delay or defraud an of its creditors.
It is understood and agreed that the representations and warranties
set forth in this Section 2.04 shall survive delivery of the respective Mortgage
Files to the Trustee or the Custodian and shall inure to the benefit of the
Trustee, notwithstanding any restrictive or qualified endorsement or assignment.
Section 2.05 Designation of Interests in the REMIC. The Depositor
hereby designates the Classes of Class A Certificates (other than the Class
A-PO, 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-LWIO Interest, Class 2-L Interest, Class 2-LP
Interest, Class 2-LS Interest, Class 2-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 August 25, 2033.
Section 2.08 Execution and Delivery of Certificates. The Securities
Administrator (i) acknowledges the issuance of and hereby declares that it holds
the Uncertificated Lower-Tier 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, together with the Uncertificated Lower-Tier
Interests, is hereby acknowledged, Certificates in authorized denominations
which evidence ownership of the entire Trust Estate.
ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicing of the Mortgage Loans. For and on
behalf of the Certificateholders, the Master Servicer shall supervise, monitor
and oversee the obligations of the Servicers to service and administer their
respective Mortgage Loans in accordance with the terms of the applicable
Servicing Agreement and shall have full power and authority to do any and all
things which it may deem necessary or desirable in connection with such master
servicing and administration. In performing its obligations hereunder, the
Master Servicer shall act in a manner consistent with this Agreement, subject to
the prior sentence, and with customary and usual standards of practice of
prudent mortgage loan master servicers. Furthermore, the Master Servicer shall
oversee and consult with each Servicer as necessary from time-to-time to carry
out the Master Servicer's obligations hereunder, shall receive, review and
evaluate all reports, information and other data provided to the Master Servicer
by each Servicer and shall cause each Servicer to perform and observe the
covenants, obligations and conditions to be performed or observed by such
Servicer under the applicable Servicing Agreement. The Master Servicer shall
independently and separately monitor each Servicer's servicing activities with
respect to each related Mortgage Loan, reconcile the results of such monitoring
with such information provided in the previous sentence on a monthly basis and
coordinate corrective adjustments to the Servicers' and Master Servicer's
records, and based on such reconciled and corrected information, prepare the
Master Servicer's Certificate and any other information and statements required
hereunder. The Master Servicer shall reconcile the results of its Mortgage Loan
monitoring with the actual remittances of the Servicers to the Certificate
Account pursuant to the applicable Servicing Agreements.
The relationship of the Master Servicer (and of any successor to the
Master Servicer as master servicer under this Agreement) to the Trustee and the
Securities Administrator under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
Section 3.02 Monitoring of Servicers.
(a) The Master Servicer shall be responsible for reporting to the
Trustee, the Securities Administrator and the Depositor the compliance by each
Servicer with its duties under the related Servicing Agreement. In the review of
each Servicer's activities, the Master Servicer may rely upon an officer's
certificate of the Servicer with regard to such Servicer's compliance with the
terms of its Servicing Agreement. In the event that the Master Servicer, in its
judgment, determines that a Servicer should be terminated in accordance with its
Servicing Agreement, or that a notice should be sent pursuant to such Servicing
Agreement with respect to the occurrence of an event that, unless cured, would
constitute grounds for such termination, the Master Servicer shall notify the
Depositor, the Securities Administrator and the Trustee thereof and the Master
Servicer shall issue such notice or take such other action as it deems
appropriate.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of each Servicer under the
related Servicing Agreement, and shall, in the event that a Servicer fails to
perform its obligations in accordance with the related Servicing Agreement,
subject to the preceding paragraph, terminate the rights and obligations of such
Servicer thereunder and act as successor Servicer of the related Mortgage Loans
under the applicable Servicing Agreement or cause the Trustee to enter in to a
new Servicing Agreement with a successor Servicer selected by the Master
Servicer; provided, however, it is understood and acknowledged by the parties
hereto that there will be a period of transition (not to exceed 90 days) before
the actual servicing functions can be fully transferred to such successor
Servicer. Such enforcement, including, without limitation, the legal prosecution
of claims, termination of Servicing Agreements and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent
and at such time as the Master Servicer, in its good faith business judgment,
would require were it the owner of the related Mortgage Loans. The Master
Servicer shall pay the costs of such enforcement at its own expense, provided
that the Master Servicer shall not be required to prosecute or defend any legal
action except to the extent that the Master Servicer shall have received
reasonable indemnity for its costs and expenses in pursuing such action.
(c) To the extent that the costs and expenses of the Master Servicer
related to any termination of a Servicer, appointment of a successor Servicer or
the transfer and assumption of servicing by the Master Servicer with respect to
any Servicing Agreement (including, without limitation, (i) all legal costs and
expenses and all due diligence costs and expenses associated with an evaluation
of the potential termination of the Servicer as a result of an event of default
by such Servicer and (ii) all costs and expenses associated with the complete
transfer of servicing, including all servicing files and all servicing data and
the completion, correction or manipulation of such servicing data as may be
required by the successor servicer to correct any errors or insufficiencies in
the servicing data or otherwise to enable the successor service to service the
Mortgage Loans in accordance with the related Servicing Agreement) are not fully
and timely reimbursed by the terminated Servicer, the Master Servicer shall be
entitled to reimbursement of such costs and expenses from the Certificate
Account.
(d) The Master Servicer shall require each Servicer to comply with
the remittance requirements and other obligations set forth in the related
Servicing Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and warranties of the Servicer, if any, that
it replaces.
Section 3.03 Fidelity Bond; Errors and Omissions Insurance. The
Master Servicer shall maintain, at its own expense, a blanket fidelity bond and
an errors and omissions insurance policy, with broad coverage on all officers,
employees or other persons involved in the performance of its obligations as
Master Servicer hereunder. These policies must insure the Master Servicer
against losses resulting from dishonest or fraudulent acts committed by the
Master Servicer's personnel, any employees of outside firms that provide data
processing services for the Master Servicer, and temporary contract employees or
student interns. No provision of this Section 3.03 requiring such fidelity bond
and errors and omissions insurance shall diminish or relieve the Master Servicer
from its duties and obligations as set forth in this Agreement. The minimum
coverage under any such bond and insurance policy shall be at least equal to the
corresponding amounts required by 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 Master Servicer by express
waiver of FNMA or FHLMC. In the event that any such policy or bond ceases to be
in effect, the Master Servicer shall obtain a comparable replacement policy or
bond from an insurer or issuer, meeting the requirements set forth above as of
the date of such replacement.
Section 3.04 Access to Certain Documentation.
The Master Servicer shall provide and cause each Servicer to provide
in accordance with the related Servicing Agreement 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 Master Servicer and the related Servicer. In fulfilling such request for
access, the Master Servicer shall not be responsible to determine the
sufficiency of any information provided by such Servicer. Nothing in this
Section 3.04 shall limit the obligation of the Master Servicer and the related
Servicer to observe any applicable law and the failure of the Master Servicer or
the related Servicer to provide access as provided in this Section 3.04 as a
result of such obligation shall not constitute a breach of this Section 3.04.
Section 3.05 Maintenance of Primary Mortgage Insurance Policy;
Claims.
(a) The Master Servicer shall not take, or permit any Servicer (to
the extent such action is prohibited under the applicable Servicing Agreement)
to take, any action that would result in noncoverage under any applicable
Primary Mortgage Insurance Policy of any loss which, but for the actions of such
Master Servicer or Servicer, would have been covered thereunder. The Master
Servicer shall use its best reasonable efforts to cause each Servicer (to the
extent required under the related Servicing Agreement) to keep in force and
effect (to the extent that the Mortgage Loan requires the Mortgagor to maintain
such insurance), primary mortgage insurance applicable to each Mortgage Loan in
accordance with the provisions of this Agreement and the related Servicing
Agreement, as applicable. The Master Servicer shall not, and shall not permit
any Servicer (to the extent required under the related Servicing Agreement) to,
cancel or refuse to renew any such Primary Mortgage Insurance Policy that is in
effect at the date of the initial issuance of the Mortgage Note and is required
to be kept in force hereunder except in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each Servicer
(to the extent required under the related Servicing Agreement) to present, on
behalf of the Trustee and the Certificateholders, claims to the insurer under
any Primary Mortgage Insurance Policies and, in this regard, to take such
reasonable action as shall be necessary to permit recovery under any Primary
Mortgage Insurance Policies respecting defaulted Mortgage Loans. Pursuant to
Sections 3.09 and 3.10, any amounts collected by the Master Servicer or any
Servicer under any Primary Mortgage Insurance Policies shall be deposited in the
Certificate Account, subject to withdrawal pursuant to Sections 3.09 and 3.10.
Section 3.06 Rights of the Depositor, the Securities Administrator
and the Trustee in Respect of the Master Servicer.
The Depositor may, but is not obligated to, enforce the obligations
of the Master Servicer hereunder and may, but is not obligated to, perform, or
cause a designee to perform, any defaulted obligation of the Master Servicer
hereunder and in connection with any such defaulted obligation to exercise the
related rights of the Master Servicer hereunder; provided that the Master
Servicer shall not be relieved of any of its obligations hereunder by virtue of
such performance by the Depositor or its designee. Neither the Securities
Administrator, the Trustee nor the Depositor shall have any responsibility or
liability for any action or failure to act by the Master Servicer nor shall the
Securities Administrator, the Trustee or the Depositor be obligated to supervise
the performance of the Master Servicer hereunder or otherwise.
Section 3.07 Trustee to Act as Master Servicer.
If the Master Servicer shall for any reason no longer be the Master
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 Master Servicer to assume, all of the rights and obligations of the
Master Servicer hereunder arising thereafter. Any such assumption shall be
subject to Sections 7.02 and 8.05.
The predecessor Master Servicer shall, upon request of the Trustee,
but at the expense of the predecessor Master Servicer, deliver to the assuming
party all master servicing documents and records 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 documentation and records to the
assuming party. The Trustee shall be entitled to be reimbursed from the Master
Servicer (or the Trust if the Master Servicer is unable to fulfill its
obligations hereunder) for all Master Servicing Transfer Costs.
Section 3.08 Servicer Custodial Accounts.
The Master Servicer shall enforce the obligation of each Servicer to
establish and maintain a Servicer Custodial Account in accordance with the
applicable Servicing Agreement, with records to be kept with respect thereto on
a Mortgage Loan by Mortgage Loan basis, into which accounts shall be deposited
within 48 hours (or as of such other time specified in the related Servicing
Agreement) of receipt all collections of principal and interest on any Mortgage
Loan and with respect to any REO Property received by a Servicer, including
Principal Prepayments, Insurance Proceeds, Liquidation Proceeds, and advances
made from the Servicer's own funds (less servicing compensation as permitted by
the applicable Servicing Agreement in the case of any Servicer) and all other
amounts to be deposited in the Servicer Custodial Account. The Master Servicer
is hereby authorized to make withdrawals from and deposits to the related
Servicer Custodial Account for purposes required or permitted by this Agreement.
Section 3.09 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
Master Servicer shall enforce the obligations of the Servicers to collect all
payments due under the terms and provisions of the Mortgage Loans when the same
shall become due and payable to the extent such procedures shall be consistent
with the applicable Servicing Agreement.
(b) The Securities Administrator shall establish and maintain the
Certificate Account, which shall be deemed to consist of three sub-accounts. The
Securities Administrator shall, promptly upon receipt, deposit in the
Certificate Account and retain therein any amounts which are required to be
deposited in the Certificate Account by the Securities Administrator.
(c) The Master Servicer shall deposit or cause to be deposited into
the Certificate 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 the Servicers or received by it 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:
(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 related 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 3.10 and (B) any Insurance Proceeds
released from an Escrow Account;
(iv) any amount required to be deposited by the Master Servicer
pursuant to Section 3.09(d) in connection with any losses on Permitted
Investments with respect to the Certificate Account;
(v) any amounts relating to REO Property required to be remitted by
the applicable Servicer;
(vi) Periodic Advances made by the applicable Servicer pursuant to
the related Servicing Agreement and any Compensating Interest paid by the
applicable Servicer pursuant to the related Servicing Agreement;
(vii) all Repurchase Prices and Substitute Adjustment Amounts
received by the Servicer; and
(viii) any other amounts required to be deposited hereunder.
If the Master Servicer shall remit any amount not required to be
remitted, it may at any time direct the Securities Administrator to withdraw
such amount from the Certificate Account, any provision herein to the contrary
notwithstanding. Such direction may be accomplished by delivering an Officer's
Certificate to the Securities Administrator which describes the amounts
deposited in error in the Certificate Account. All funds required to be
deposited in the Certificate Account shall be held by the Securities
Administrator in trust for the Certificateholders until disbursed in accordance
with this Agreement or withdrawn in accordance with Section 3.11. In no event
shall the Securities Administrator incur liability for withdrawals from the
Certificate Account at the direction of the Master Servicer.
(d) Each institution at which the Certificate Account is maintained
shall invest the funds therein as directed in writing by the Master Servicer in
Permitted Investments, which shall mature not later than the Business Day next
preceding the Distribution Date (except that if such Permitted Investment is an
obligation of the institution that maintains such account, then such Permitted
Investment shall mature not later than such Distribution Date) and, in each
case, shall not be sold or disposed of prior to its maturity. All such Permitted
Investments shall be made in the name of the Trustee, for the benefit of the
Certificateholders. All Certificate Account Reinvestment Income shall be for the
benefit of the Master Servicer as part of its master servicing compensation and
shall be remitted to the Master Servicer monthly as provided herein. The amount
of any losses realized in the Certificate Account incurred in any such account
in respect of any such investments shall promptly be deposited by the Master
Servicer in the Certificate Account.
(e) The Securities Administrator shall give notice to the Depositor,
the Trustee, the Master Servicer and the Rating Agencies of any proposed change
of the location of the Certificate Account maintained by the Securities
Administrator not later than 30 days after and not more than 45 days prior to
any change thereof. The creation of the Certificate 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 Master Servicer.
(f) The Securities Administrator 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 Master Servicer), the Securities Administrator 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 3.10 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.
To the extent required by the related Servicing Agreement and by the
related Mortgage Note and not violative of current law, the Master Servicer
shall require each Servicer to establish and maintain one or more escrow
accounts (for each Servicer, collectively, the "Escrow Account") and deposit and
retain therein all collections from the Mortgagors (or advances by such
Servicer) for the payment of taxes, assessments, hazard insurance premiums or
comparable items for the account of the Mortgagors. Nothing herein shall require
the Master Servicer to compel a Servicer to establish an Escrow Account in
violation of applicable law.
Section 3.11 Access to Certain Documentation and Information
Regarding the Mortgage Loans.
The Master Servicer shall afford and shall enforce the obligation of
the Servicers to afford the Securities Administrator and the Trustee reasonable
access to all records and documentation regarding the Mortgage Loans and all
accounts, insurance information and other matters relating to this Agreement,
such access being afforded without charge, but only upon reasonable request and
during normal business hours at the office designated by the Master Servicer or
the applicable Servicer.
Upon reasonable advance notice in writing, the Master Servicer will
provide or shall enforce the obligation of the Servicers to 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 Master
Servicer or the applicable Servicer shall be entitled to be reimbursed by each
such Certificateholder for actual expenses incurred by the Master Servicer or
the applicable Servicer in providing such reports and access.
Section 3.12 Permitted Withdrawals from the Certificate Account.
(a) The Securities Administrator shall withdraw funds from the
Certificate Account for distributions to Certificateholders in the manner
specified in this Agreement. In addition, the Securities Administrator may from
time to time make withdrawals from the Certificate Account for the following
purposes:
(i) to pay to the Servicers (to the extent not previously retained
by them), the Servicing Fee to which they are entitled pursuant to the
Servicing Agreements and to pay to the Master Servicer the Master Servicer
Fee and any Certificate Account Reinvestment Income;
(ii) to pay to itself and the Trustee any amounts due to the
Securities Administrator and the Trustee under this Agreement (including
all amounts provided for under Section 9.11, other than the amounts
provided for in the first sentence of Section 9.11);
(iii) to reimburse the Servicers for unreimbursed Advances made by
it, such right of reimbursement pursuant to this clause (iii) being
limited to amounts received on the Mortgage Loans in the related Loan
Group in respect of which any such Advance was made;
(iv) to reimburse the Servicers for any Nonrecoverable Advance
previously made, such right of reimbursement pursuant to this clause (iv)
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;
(v) to reimburse the Servicers for Insured Expenses from the related
Insurance Proceeds;
(vi) to pay to the purchaser, with respect to each Mortgage Loan or
REO Property that has been purchased pursuant to Section 2.02, all amounts
received thereon after the date of such purchase;
(vii) to reimburse the Master Servicer or the Depositor for expenses
incurred by any of them and reimbursable pursuant to this Agreement,
including but not limited to, Section 7.03;
(viii) to withdraw any amount deposited in the Certificate Account
and not required to be deposited therein; and
(ix) to clear and terminate the Certificate Account upon termination
of the Agreement pursuant to Section 10.01.
(b) On each Distribution Date, funds on deposit in the Certificate
Account and deemed to be on deposit in the Upper-Tier Certificate Sub-Account
shall be used to make payments on the Regular Certificates, the Class A-PO
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 3.13 Maintenance of Hazard Insurance.
For each Mortgage Loan the Master Servicer shall enforce any
obligation of the Servicers under the related Servicing Agreements to maintain
or cause to be maintained fire and hazard insurance with extended coverage
customary in the area where the Mortgaged Property is located in accordance with
the related Servicing Agreements. It is understood and agreed that such
insurance shall be with insurers meeting the eligibility requirements set forth
in the applicable Servicing Agreement and that no earthquake or other additional
insurance is to be required of any Mortgagor or to be maintained on property
acquired in respect of a defaulted loan, other than pursuant to such applicable
laws and regulations as shall at any time be in force and as shall require such
additional insurance.
Pursuant to Sections 3.09 and 3.10, any amounts collected by the
Master Servicer, or by any Servicer, under any insurance policies (other than
amounts to be applied to the restoration or repair of the property subject to
the related Mortgage or released to the Mortgagor in accordance with the
applicable Servicing Agreement) shall be deposited into the Certificate Account,
subject to withdrawal pursuant to Sections 3.09 and 3.10. Any cost incurred by
the Master Servicer or any Servicer in maintaining any such insurance if the
Mortgagor defaults in its obligation to do so shall be added to the amount owing
under the Mortgage Loan where the terms of the Mortgage Loan so permit;
provided, however, that the addition of any such cost shall not be taken into
account for purposes of calculating the distributions to be made to
Certificateholders and shall be recoverable by the Master Servicer or such
Servicer pursuant to Sections 3.09 and 3.10.
Section 3.14 Presentment of Claims and Collection of Proceeds.
The Master Servicer shall (to the extent provided in the applicable
Servicing Agreement) cause the related Servicer to, prepare and present on
behalf of the Trustee and the Certificateholders all claims under the Insurance
Policies and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured's claim) as shall be necessary to
realize recovery under such policies. Any proceeds disbursed to the Master
Servicer (or disbursed to a Servicer and remitted to the Master Servicer) in
respect of such policies, bonds or contracts shall be promptly deposited in the
Certificate Account upon receipt, except that any amounts realized that are to
be applied to the repair or restoration of the related Mortgaged Property as a
condition precedent to the presentation of claims on the related Mortgage Loan
to the insurer under any applicable Insurance Policy need not be so deposited
(or remitted).
Section 3.15 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
To the extent provided in the applicable Servicing Agreement and to
the extent Mortgage Loans contain enforceable due-on-sale clauses, the Master
Servicer shall cause the Servicers to enforce such clauses in accordance with
the applicable Servicing Agreement. If applicable law prohibits the enforcement
of a due-on-sale clause or such clause is otherwise not enforced in accordance
with the applicable Servicing Agreement, and, as a consequence, a Mortgage Loan
is assumed, the original Mortgagor may be released from liability in accordance
with the applicable Servicing Agreement.
Section 3.16 Realization Upon Defaulted Mortgage Loans; REO
Property.
(a) The Master Servicer shall cause each Servicer (to the extent
required under the related Servicing Agreement) to foreclose upon or otherwise
comparably convert the ownership of Mortgaged Properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments, all
in accordance with the applicable Servicing Agreement.
(b) The Master Servicer shall permit a Servicer to 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
applicable Servicer to the extent provided in the applicable Servicing Agreement
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.
(c) With respect to any REO Property, the deed or certificate of
sale shall be taken in the name of the Trust for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. The
Master Servicer shall enforce the obligation of the Servicers, to the extent
provided in the applicable Servicing Agreement, to (i) cause name of the Trust
to be placed on the title to such REO Property and (ii) ensure that the title to
such REO Property references this Agreement. The Master Servicer shall, to the
extent provided in the applicable Servicing Agreement, cause the applicable
Servicer to sell any REO Property as expeditiously as possible and in accordance
with the provisions of this Agreement and the related Servicing Agreement, as
applicable. Pursuant to its efforts to sell such REO Property, the Master
Servicer shall cause the applicable Servicer to protect and conserve such REO
Property in the manner and to the extent required by the applicable Servicing
Agreement, subject to the REMIC Provisions.
(d) The Master Servicer shall, to the extent required by the related
Servicing Agreement, cause the applicable Servicer to deposit all funds
collected and received in connection with the operation of any REO Property in
the Servicer Custodial Account.
(e) The applicable Servicer, upon the final disposition of any REO
Property, shall be entitled to reimbursement for any related unreimbursed
Periodic Advances and other unreimbursed advances as well as any unpaid
Servicing Fees from Liquidation Proceeds received in connection with the final
disposition of such REO Property; provided that any such unreimbursed Periodic
Advances as well as any unpaid Servicing Fees may be reimbursed or paid, as the
case may be, prior to final disposition, out of any net rental income or other
net amounts derived from such REO Property.
(f) The Liquidation Proceeds from the final disposition of the REO
Property, net of any payment to the applicable Servicer as provided above shall
be deposited in the related Servicer Custodial Account on or prior to the
Determination Date in the month following receipt thereof and be remitted by
wire transfer in immediately available funds to the Master Servicer for deposit
into the related Servicer Custodial Account.
In the event that the Trust Estate acquires any Mortgaged Property
as aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Master Servicer shall enforce the obligation of the related
Servicer to dispose of such Mortgaged Property within the time period specified
in the applicable Servicing Agreement unless the Servicer shall have applied for
and received an extension of such period from the Internal Revenue Service, in
which case the Trust Estate may continue to hold such Mortgaged Property for the
period of such extension. 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 either
REMIC hereunder to the imposition of any federal, state or local income taxes on
the income earned from such Mortgaged Property under Section 860G(c) of the Code
or otherwise, unless the Master Servicer or related Servicer, as applicable, has
agreed to indemnify and hold harmless the Trust with respect to the imposition
of any such taxes.
(g) On the 2nd Business Day prior to the related Distribution Date,
the Master Servicer shall notify the Depositor of any Mortgage Loan which is 180
days or more delinquent. The Depositor shall be entitled, at its option, to
repurchase any such delinquent Mortgage Loan from the Trust Estate if in the
Depositor's judgment, the default is not likely to be cured by the Mortgagor.
The purchase price for any such Mortgage Loan shall be 100% of the unpaid
principal balance of such Mortgage Loan plus accrued interest thereon at the
Mortgage Interest Rate (less the Servicing Fee Rate for such Mortgage Loan)
through the last day of the month in which such repurchase occurs. The Depositor
shall notify the related Servicer and the Master Servicer of its intent to
repurchase such Mortgage Loan. Upon the receipt of such purchase price, the
Master Servicer shall provide to the Trustee the notification required by
Section 3.17 and the Trustee or the Custodian shall promptly release to the
Depositor the Mortgage File relating to the Mortgage Loan being repurchased.
Section 3.17 Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer or the related Servicer of a notification that payment in full
will be escrowed in a manner customary for such purposes, the Master Servicer or
the related Servicer will immediately notify the Trustee (or, at the direction
of the Trustee, 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 Master Servicer or the related Servicer). Upon receipt of
such request, the Trustee or the Custodian, as applicable, shall within seven
Business Days release the related Mortgage File to the Master Servicer or the
related Servicer. The Trustee shall at the Master Servicer's or the related
Servicer's direction execute and deliver to the Master Servicer or the related
Servicer the request for reconveyance, deed of reconveyance or release or
satisfaction of mortgage or such instrument releasing the lien of the Mortgage,
in each case provided by the Master Servicer or the related Servicer, together
with the Mortgage Note with written evidence of cancellation thereon. If the
Mortgage has been recorded in the name of MERS or its designee, the Master
Servicer shall enforce the applicable Servicer's obligation under the related
Servicing Agreement take all necessary action to reflect the release of the
Mortgage on the records of MERS. Expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
related Mortgagor.
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 Master Servicing Officer or a Servicing Officer, release the
Mortgage File within seven Business Days to the Master Servicer or the related
Servicer. Subject to the further limitations set forth below, the Master
Servicer or the applicable Servicer shall cause the Mortgage Files so released
to be returned to the Trustee or the Custodian, as applicable, when the need
therefor no longer exists, unless the Mortgage Loan is liquidated and the
proceeds thereof are deposited in the Servicer Custodial Account, in which case
such Servicer shall deliver to the Trustee or the Custodian, as applicable, a
Request for Release, signed by a Servicing Officer.
If the Master Servicer or any related Servicer at any time seeks to
initiate a foreclosure proceeding in respect of any Mortgaged Property as
authorized by this Agreement or the Servicing Agreement, the Master Servicer or
any related Servicer shall deliver or cause to be delivered to the Trustee, for
signature, as appropriate, any court pleadings, requests for trustee's sale or
other documents necessary to effectuate such foreclosure or any legal action
brought to obtain judgment against the Mortgagor on the Mortgage Note or the
Mortgage or to obtain a deficiency judgment or to enforce any other remedies or
rights provided by the Mortgage Note or the Mortgage or otherwise available at
law or in equity.
Section 3.18 Documents, Records and Funds in Possession of the
Master Servicer to be Held for the Trustee.
Notwithstanding any other provisions of this Agreement, the Master
Servicer shall cause each Servicer to transmit to the Trustee as required by
this Agreement and the Servicing Agreements all documents and instruments in
respect of a Mortgage Loan coming into the possession of the Servicer from time
to time and shall account fully to the Trustee for any funds received by the
Master Servicer or the related Servicer or which otherwise are collected by the
Master Servicer or the related Servicer as Liquidation Proceeds or Insurance
Proceeds in respect of any Mortgage Loan. All Mortgage Files and funds collected
or held by, or under the control of, the Master Servicer or the related Servicer
in respect of any Mortgage Loans, whether from the collection of principal and
interest payments or from Liquidation Proceeds, including but not limited to,
any funds on deposit in the Certificate Account or any Servicer Custodial
Account, shall be held by the Master Servicer or the related Servicer for and on
behalf of the Trustee and shall be and remain the sole and exclusive property of
the Trustee, subject to the applicable provisions of this Agreement and the
related Servicing Agreement. The Master Servicer also agrees that it shall not
knowingly create, incur or subject any Mortgage File or any funds that are
deposited in the Certificate Account or any Escrow Account, or any funds that
otherwise are or may become due or payable to the Trustee for the benefit of the
Certificateholders, to any claim, lien, security interest, judgment, levy, writ
of attachment or other encumbrance created by the Master Servicer, or assert by
legal action or otherwise any claim or right of setoff against any Mortgage File
or any funds collected on, or in connection with, a Mortgage Loan, except,
however, that the Master Servicer shall be entitled to set off against and
deduct from any such funds any amounts that are properly due and payable to the
Master Servicer under this Agreement.
Section 3.19 Master Servicer Compensation.
The Master Servicer shall be entitled to an amount equal to the
Master Servicer Fee for such Distribution Date.
Additional master servicing compensation in the form of Certificate
Account Reinvestment Income shall be remitted to the Master Servicer pursuant to
Section 3.09. The Master Servicer shall be required to pay all expenses incurred
by it in connection with its master servicing activities hereunder and shall not
be entitled to reimbursement therefor except as specifically provided in this
Agreement.
Section 3.20 Annual Statement as to Compliance.
The Master Servicer shall deliver to the Securities Administrator
(and the Securities Administrator will forward to the Trustee and each Rating
Agency), no later than March 15 following the end of each calendar year
commencing with February 2004, an Officer's Certificate, signed by two officers
of the Master Servicer, stating, as to the signers thereof, that (a) a review of
the activities of the Master Servicer during the preceding calendar year and of
the performance of the Master Servicer under this Agreement or similar
agreements has been made under such officer's supervision, and (b) to the best
of such officer's knowledge, based on such review, the Master 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.
In addition, the Master Servicer shall enforce each Servicer's
obligation under the related Servicing Agreement to provide a similar statement
relating to compliance with the related Servicing Agreement.
Section 3.21 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
The Master Servicer shall enforce each Servicer's obligation to
provide the report required to be provided each year pursuant to Section 6.05 of
each Servicing Agreement.
Section 3.22 Advances.
The Master Servicer shall enforce the obligations of each Servicer
to make a Periodic Advance in accordance with the applicable Servicing
Agreement. A Servicer shall be entitled to be reimbursed from the Certificate
Account for all Advances of its own funds made pursuant to the related Servicing
Agreement. Based upon information set forth in the servicer reports, the Master
Servicer shall inform the Securities Administrator of the amount of the Periodic
Advance to be made by a Servicer with respect to each Loan Group on each
Servicer Advance Date no later than the related Servicer Remittance Date.
Section 3.23 Reports to the Securities and Exchange Commission.
(a) The Securities Administrator and the Master Servicer shall
reasonably cooperate with the Depositor in connection with the Trust's
satisfying its reporting requirements under the Exchange Act. Without limiting
the generality of the foregoing, the Securities Administrator shall prepare on
behalf of the Trust any monthly Current Reports on Form 8-K (each, a "Monthly
Form 8-K") and Annual Reports on Form 10-K (each, a "Form 10-K") customary for
similar securities as required by the Exchange Act and the rules and regulations
of the Securities and Exchange Commission thereunder, and the Securities
Administrator shall sign and file (via the Securities and Exchange Commission's
Electronic Data Gathering and Retrieval System) such Forms (other than any
Annual Report on Form 10-K, which shall be signed by the Depositor) on behalf of
the Trust.
(b) Each Monthly Form 8-K shall be filed by the Securities
Administrator within 15 days after each Distribution Date, including a copy of
the monthly statement to Certificateholders delivered pursuant to Section
5.04(b) (each, a "Distribution Date Statement") for such Distribution Date as an
exhibit thereto. Prior to March 30th of each year (or such earlier date as may
be required by the Exchange Act and the rules and regulations of the Securities
and Exchange Commission), the Securities Administrator shall file a Form 10-K,
in substance as required by applicable law or applicable Securities and Exchange
Commission staff's interpretations. Such Form 10-K shall include as exhibits the
Master Servicer's and the Servicer's annual statement of compliance described
under Section 3.20 and the accountant's report referenced under Section 3.21, in
each case, to the extent they have been timely delivered to the Securities
Administrator. If they are not so timely delivered, the Securities Administrator
shall file an amended Form 10-K including such documents as exhibits reasonably
promptly after they are delivered to the Securities Administrator. The
Securities Administrator shall have no liability with respect to any failure to
properly prepare or file such periodic reports resulting from or relating to the
Securities Administrator's inability or failure to obtain any information not
resulting from its own negligence, willful misconduct or bad faith. The Form
10-K shall also include a certification in the form attached hereto as Exhibit O
(the "Certification"), which shall be signed by a senior officer of the
Depositor in charge of securitization. The Depositor shall deliver the
Certification to the Securities Administrator three (3) Business Days prior to
the latest date on which the Form 10-K may be timely filed. The Securities
Administrator, the Depositor and the Master 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 3.23, to be conducted or allocated in a different
manner.
(c) Prior to the latest date on which the Form 10-K may be timely
filed each year, the Securities Administrator shall sign and deliver to the
Depositor a certification (in the form attached hereto as Exhibit P) for the
benefit of the Depositor and its officers, directors and affiliates (provided,
however, that the Securities Administrator shall not undertake an analysis of
the accountant's report attached as an exhibit to the Form 10-K). In addition,
the Securities Administrator shall indemnify and hold harmless the Depositor,
each person, if any, who "controls" the Depositor within the meaning of the
Securities Act of 1933, as amended and their respective officers, directors,
agents and affiliates (collectively, the "Depositor Indemnified Parties") from
and against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon any inaccuracy in the certification provided by the
Securities Administrator pursuant to this Section 3.23(c), any breach by the
Securities Administrator or any of its officers, directors, agents or affiliates
of its obligations under this Section 3.23(c) or any material misstatements or
omission contained in the certification delivered pursuant to this Section
3.23(c) or the Securities Administrator's negligence, bad faith or willful
misconduct in connection therewith. If the indemnification provided for herein
is unavailable or insufficient to hold harmless the Depositor Indemnified
Parties, then the Securities Administrator agrees that it shall contribute to
the amount paid or payable by such Depositor Indemnified Parties as a result of
the losses, claims, damages or liabilities of such Depositor Indemnified Parties
in such proportion as is appropriate to reflect the relative fault of such
Depositor Indemnified Parties on the one hand and the Securities Administrator
on the other in connection with a breach of the Securities Administrator's
obligations under this Section 3.23(c), any material misstatement or omission
contained in the certification delivered pursuant to this Section 3.23(c) or the
Securities Administrator's negligence, bad faith or willful misconduct in
connection therewith. The Master Servicer hereby acknowledges and agrees that
the Depositor and the Securities Administrator are relying on the Master
Servicer's performance of its obligations under Sections 3.20 and 3.21 in order
to perform their respective obligations under this Section 3.23.
(d) Prior to the latest date on which the Form 10-K may be timely
filed each year, the Master Servicer shall sign and deliver to the Depositor a
certification (in the form attached hereto as Exhibit Q) for the benefit of the
Depositor and its officers, directors and affiliates. In addition, the Master
Servicer shall indemnify and hold harmless the Depositor Indemnified Parties
from and against any losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments and other costs and
expenses arising out of or based upon any inaccuracy in the certification
provided by the Master Servicer pursuant to this Section 3.23(d), any breach by
the Master Servicer or any of its officers, directors, agents or affiliates of
its obligations under this Section 3.23(d) or any material misstatement or
omission contained in the certification delivered pursuant to this Section
3.23(d) or the Master Servicer's negligence, bad faith or willful misconduct in
connection therewith. If the indemnification provided for herein is unavailable
or insufficient to hold harmless the Depositor Indemnified Parties, then the
Master Servicer agrees that it shall contribute to the amount paid or payable by
such Depositor Indemnified Parties as a result of the losses, claims, damages or
liabilities of such Depositor Indemnified Parties in such proportion as is
appropriate to reflect the relative fault of such Depositor Indemnified Parties
on the one hand and the Master Servicer on the other in connection with a breach
of the Master Servicer's obligations under this Section 3.23(d), any material
misstatement or omission contained in the certificate delivered pursuant to
3.23(d) or the Master Servicer's negligence, bad faith or willful misconduct in
connection therewith.
(e) Prior to the latest date on which the Form 10-K may be timely
filed each year, the Master Servicer shall enforce the obligation of each
Servicer to provide the certification required pursuant to each of the Servicing
Agreements.
(f) Upon any filing with the Securities and Exchange Commission, the
Securities Administrator shall promptly deliver to the Depositor a copy of any
such executed report, statement or information.
(g) The obligations set forth in paragraphs (a) through (f) of this
Section shall only apply with respect to periods for which the Securities
Administrator is obligated to file reports on Form 8-K or 10-K pursuant to
paragraph (b) of this Section. As soon as permitted under applicable law, unless
otherwise instructed by the Depositor, the Securities Administrator shall
prepare, execute and file with the Securities and Exchange Commission a Form 15
Suspension Notification with respect to the Trust, and thereafter there shall be
no further obligations under paragraphs (a) through (d) of this Section
commencing with the fiscal year in which the Form 15 is filed (other than the
obligations to be performed in such fiscal year that relate back to the prior
fiscal year).
ARTICLE IV
MASTER SERVICER'S CERTIFICATE
Section 4.01 Master Servicer's Certificate.
Each month, not later than 12:00 noon Eastern time on the 18th
calendar day of such month (or if such day is not a Business Day, the following
Business Day, the Master Servicer shall deliver to the Securities Administrator,
a Master Servicer's Certificate (in substance and format mutually acceptable to
the Master Servicer and the Securities Administrator) certified by a Master
Servicing Officer setting forth the information necessary in order for the
Securities Administrator to perform its obligations under this Agreement. The
Securities Administrator may conclusively rely upon the information contained in
a Master Servicer's Certificate 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 Master Servicer's Certificate, the Securities
Administrator shall distribute out of the Certificate Account (to the extent
funds are available therein) to each Certificateholder of record on the related
Record Date (other than as provided in Section 10.01 respecting the final
distribution) (a) by check mailed to such Certificateholder entitled to receive
a distribution on such Distribution Date at the address appearing in the
Certificate Register, or (b) upon written request by the Holder of a Regular
Certificate, by wire transfer or by such other means of payment as such
Certificateholder and the Securities Administrator shall agree upon, such
Certificateholder's Percentage Interest in the amount to which the related Class
of Certificates is entitled in accordance with the priorities set forth below in
Section 5.02.
None of the Holders of any Class of Certificates, the Depositor, the
Master Servicer, the Securities Administrator or the Trustee shall in any way be
responsible or liable to Holders of any Class of Certificates in respect of
amounts properly previously distributed on any such Class.
Amounts distributed with respect to any Class of Certificates shall
be applied first to the distribution of interest thereon and then to principal
thereon.
Section 5.02 Priorities of Distributions.
(a) On each Distribution Date, based solely on the information
contained in the Master Servicer's Certificate, the Securities Administrator
shall withdraw from the Certificate Account (to the extent funds are available
therein) (1) to the extent not previously paid, the amounts payable to the
Securities Administrator and the Trustee pursuant to Sections 3.12(a)(ii) and
shall pay such funds to itself and the Trustee, as applicable, and (2) the Pool
Distribution Amount for each Loan Group, in an amount as specified in written
notice received by the Securities Administrator from the Master 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 in the following order of priority and to the extent of such funds,
paying Group 1 solely from the Pool Distribution Amount for Loan Group 1, paying
Group 2 solely from the Pool Distribution Amount for Loan Group 2 and paying the
Class B Certificates (including amounts used to pay Class A-PO Deferred Amounts)
from the combined Pool Distribution Amounts, in the following order of priority
and to the extent of such funds:
(i) to each Class of Senior Certificates (other than the Class A-PO
Certificates) of such Group, an amount allocable to interest equal to the
Interest Distribution Amount for such Class and any shortfall being
allocated among such Classes in proportion to the amount of the Interest
Distribution Amount that would have been distributed in the absence of
such shortfall;
(ii) concurrently to the Class A Certificates (other than the Class
A-PO Certificates) of a Group and the Class A-PO Component of such Group,
pro rata, based on their respective Senior Principal Distribution Amount
and PO Principal Amount, (A) to the Class A Certificates (other than the
Class A-PO Certificates) 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-PO Component of such Group in an aggregate amount up to the
PO Principal Amount for such Group;
(iii) to the Class A-PO Component of such Group, any applicable
Class A-PO Deferred Amount, up to the Subordinate Principal Distribution
Amount for both Loan Groups for such Distribution Date from amounts
otherwise distributable first to the Class B-6 Certificates pursuant to
clause (iv)(L) below, second to the Class B-5 Certificates pursuant to
clause (iv)(J) below, third to the Class B-4 Certificates pursuant to
clause (iv)(H) below, fourth to the Class B-3 Certificates pursuant to
clause (iv)(F) below, fifth to the Class B-2 Certificates pursuant to
clause (iv)(D) below and finally to the Class B-1 Certificates pursuant to
clause (iv)(B) below;
(iv) to each Class of Subordinate Certificates, subject to paragraph
(d) below, in the following order of priority:
(A) to the Class B-1 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(B) to the Class B-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class A-PO Deferred Amount pursuant
to clause (iii) above until the Class Certificate Balance thereof
has been reduced to zero;
(C) to the Class B-2 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(D) to the Class B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class A-PO Deferred Amount pursuant
to clause (iii) above until the Class Certificate Balance thereof
has been reduced to zero;
(E) to the Class B-3 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(F) to the Class B-3 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class A-PO Deferred Amount pursuant
to clause (iii) above until the Class Certificate Balance thereof
has been reduced to zero;
(G) to the Class B-4 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(H) to the Class B-4 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class A-PO Deferred Amount pursuant
to clause (iii) above until the Class Certificate Balance thereof
has been reduced to zero;
(I) to the Class B-5 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(J) to the Class B-5 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class A-PO Deferred Amount pursuant
to clause (iii) above until the Class Certificate Balance thereof
has been reduced to zero;
(K) to the Class B-6 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date; and
(L) to the Class B-6 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class A-PO Deferred Amount pursuant
to clause (iii) above until the Class Certificate Balance thereof
has been reduced to zero; and
(v) to the Holder of the Class 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 Amount and
any Excess Proceeds.
For any Group and on any Distribution Date, amounts distributed in
respect of Class A-PO Deferred Amounts will not reduce the Class Certificate
Balance of the applicable Class A-PO Component.
All distributions in respect of the Interest Distribution Amount for
a Class will be applied first with respect to the amount payable pursuant to
clause (i) of the definition of "Interest Distribution Amount," and second with
respect to the amount payable pursuant to clause (ii) of such definition.
On each Distribution Date, all distributions of principal shall be
made first to the Class 1-LP Interest and Class 2-LP Interest, so as to keep the
principal balances thereof at all times equal to the Component Balances of the
Class 1-A-PO Component and Class 2-A-PO Component, respectively; second, to the
Class 1-LS Interest and the Class 2-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 and Loan Group 2, respectively (except that
if any such amount is greater than on the preceding Distribution Date, the least
amount of principal shall be distributed to the Class 1-LS Interest and Class
2-LS Interest such that the Subordinate Balance Ratio is maintained); and third,
any remaining principal to the Class 1-L Interest and Class 2-L Interest. Any
distributions of principal made to the Uncertificated Lower-Tier Interests
pursuant to this paragraph shall be made (a) from the Group 1 Mortgage Loans to
the Uncertificated Lower-Tier Interests beginning with the numeral "1" and (b)
from the Group 2 Mortgage Loans to the Uncertificated Lower-Tier Interests
beginning with the numeral "2".
Realized Losses shall be applied after all distributions have been
made on each Distribution Date first, to the Class 1-LP Interest and the Class
2-LP Interest, so as to keep their principal balances equal to the Component
Balances of the Class 1-A-PO Component and Class 2-A-PO Component, respectively;
second, to the Class 1-LS Interest and the Class 2-LS Interest, so as to keep
their principal balances (computed to eight decimal places) equal to 0.100% of
the Group Subordinate Amount for Loan Group 1 and Loan Group 2, respectively
(except that if any such amount is greater than on the preceding Distribution
Date, the least amount of Realized Losses shall be allocated to the Class 1-LS
Interest and Class 2-LS Interest such that the Subordinate Balance Ratio is
maintained); and third, the remaining Realized Losses shall be allocated to the
Class 1-L Interest and Class 2-L Interest. Any Realized Losses allocated to the
Uncertificated Lower-Tier Interests pursuant to this paragraph shall be (a) from
Realized Losses allocated to Loan Group 1 in the case of Uncertificated
Lower-Tier Interests beginning with the numeral "1" and (b) from Realized Losses
allocated to Loan Group 2 in the case of Uncertificated Lower-Tier Interests
beginning with the numeral "2".
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-PO Component and (ii)
the principal balance of the Class 2-LP Interest will be equal to the Component
Balance of the Class 2-A-PO Component. As of any date, (i) the notional balance
of the Class 1-LWIO Interest will be equal to the Class 1-A-WIO Notional Amount
and (ii) the notional balance of the Class 2-LWIO Interest will be equal to the
Class 2-A-WIO 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.
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 1-LWIO
Interest and the Class 2-LWIO Interest shall be the same as the Pass-Through
Rate for the Class 1-A-WIO Certificates and the Class 2-A-WIO Certificates,
respectively. The pass-through rate for the Class 1-LP Interest shall be zero.
The pass-through rate for the Class 2-LP Interest shall be zero. Any
Non-Supported Interest Shortfalls and Relief Act Reductions will be allocated to
each Uncertificated Lower-Tier Interest in the same relative proportions as
interest is allocated to such Uncertificated Lower-Tier Interest. Amounts
distributed to the Uncertificated Lower-Tier Interests in respect of principal
and interest with respect to any Distribution Date are referred to herein
collectively as the "Lower-Tier Distribution Amount."
(b) (i) On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 1 Senior Certificates
pursuant to Section 5.02(a)(ii) for such Distribution Date, will be distributed,
sequentially, as follows:
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, to the Class 1-A-1 Certificates, until its Class Certificate
Balance has been reduced to zero.
(ii) On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 2 Senior Certificates
pursuant to Section 5.02(a)(ii) for such Distribution Date, will be distributed
to the Class 2-A-1 Certificates until its Class Certificate Balance has been
reduced to zero.
(iii) 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 as principal payments
on the Subordinate Certificates will be paid as principal to the classes of
Class A Certificates of the other Group in accordance with the priorities set
forth for the applicable Group in (i) or (ii) 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, any REO Property and each Mortgage
Loan for which the mortgagor has filed for bankruptcy after the Closing Date)
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%. In addition, if on any Distribution
Date the aggregate Class Certificate Balance of the Senior Certificates of a
Group (after giving effect to distributions to be made on such Distribution
Date) is greater than the Pool Stated Principal Balance (Non-PO 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 Senior
Certificates of the Undercollateralized Group in accordance with the priorities
set forth for the applicable Group above under (i) or (ii) until the aggregate
Class Certificate Balance of the Senior Certificates of the Undercollateralized
Group equals the Pool Stated Principal Balance (Non-PO Portion) of the related
Loan Group. Also, the amount of any Class Unpaid Interest Shortfalls with
respect to the Undercollateralized Group (including any Class Unpaid Interest
Shortfalls for such Distribution Date) will be paid to the Undercollateralized
Group in accordance with the priorities listed in Section 5.02(a)(i) prior to
the payment of any Undercollateralized Amount from amounts otherwise
distributable as principal on the Subordinate Certificates pursuant to
5.02(a)(iv)(L), (H), (F), (D) and (B), in that order.
The Class 1-A-WIO and Class 2-A-WIO Certificates are Interest-Only
Certificates and are not entitled to distributions in respect of principal.
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
shall be distributed concurrently, as principal, on such Classes, pro rata, on
the basis of their respective Class Certificate Balances, until the Class
Certificate Balances thereof are reduced to zero.
(c) On each Distribution Date, Accrued Certificate Interest for each
Class of Certificates for such Distribution Date (other than the Class A-PO
Certificates) shall be reduced by such Class' pro rata share, based on such
Class' Interest Distribution Amount for such Distribution Date, without taking
into account the allocation made by this Section 5.02(c), of (A) Non-Supported
Interest Shortfalls, (B) on and after the Senior Credit Support Depletion Date,
any other Realized Loss on the Mortgage Loans in the related 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)(iv), if with respect to any Class of Subordinate Certificates on any
Distribution Date, (i) the aggregate of the Class Certificate Balances
immediately prior to such Distribution Date of all Classes of Subordinate
Certificates which have a higher numerical Class designation than such Class,
divided by (ii) the aggregate Pool Principal Balance (Non-PO Portion) for both
Loan Groups of all the Certificates (other than the Class A-PO Certificates)
immediately prior to such Distribution Date (the "Fractional Interest") is less
than the Original Fractional Interest for such Class, no distribution of
principal will be made to any Classes junior to such Class (the "Restricted
Classes") and the Class Certificate Balances of the Restricted Classes will not
be used in determining the Pro Rata Share for the Subordinate Certificates that
are not Restricted Classes. If the aggregate Class Certificate Balance of the
Subordinate Certificates that are not Restricted Classes is reduced to zero,
notwithstanding the previous sentence, any funds remaining will be distributed
sequentially to the Restricted Classes in order of their respective numerical
Class designations (beginning with the Class of Restricted Certificates then
outstanding with the lowest numerical Class designation).
(e) On each Distribution Date, the Securities Administrator shall
distribute any Reimbursement Amount sequentially to the Classes of Certificates
then outstanding which bore the loss to which such Reimbursement Amount relates
beginning with the most senior of such Classes of Certificates, up to, with
respect to each Class, the amount of loss borne by such Class. Any Reimbursement
Amount remaining after the application described in the preceding sentence shall
be included in the related Pool Distribution Amount.
Section 5.03 Allocation of Losses.
(a) On or prior to each Determination Date, the Master Servicer
shall inform the Securities Administrator in writing with respect to each
Mortgage Loan: (1) whether any Realized Loss is a Deficient Valuation 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
Securities Administrator shall determine the total amount of Realized Losses on
the Mortgage Loans in each Loan Group with respect to the related Distribution
Date.
The principal portion of Realized Losses on the Mortgage Loans in
each Loan Group with respect to any Distribution Date shall be allocated as
follows:
(i) the applicable PO Percentage of the principal portion of any
Realized Loss with respect to a Discount Mortgage Loan in a Loan Group
shall be allocated to the Class A-PO Component of such Group until the
Component Balance thereof is reduced to zero; and
(ii) the applicable Non-PO Percentage of the principal portion of
any Realized Loss with respect to a Mortgage Loan in a 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;
and
(b) The Component Balance of the Class A-PO 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-PO 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 (PO
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 Class A-PO
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 Senior Certificates of a Group in the aggregate
shall be reduced on each Distribution Date by the amount, if any, by which the
aggregate of the Class Certificate Balances of all outstanding Classes of Senior
Certificates 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 the related Loan Group for such Distribution Date and (ii) the Adjusted Pool
Amount (PO Portion) for the related Loan Group for such Distribution Date.
Any such reduction shall be allocated among the Senior Certificates
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 the
Related Group, pro rata, in accordance with the priorities set forth in Section
5.02.
Section 5.04 Statements to Certificateholders.
(a) Prior to the Distribution Date in each month, based upon the
information provided to the Securities Administrator on the Master Servicer's
Certificates delivered to the Securities Administrator pursuant to Section 4.01,
the Securities Administrator shall determine the following information with
respect to such Distribution Date:
(i) for each Group, the amount allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments and
Liquidation Proceeds included therein;
(ii) the amount allocable to interest, any Class Unpaid Interest
Shortfall included in such distribution and any remaining Class Unpaid
Interest Shortfall after giving effect to such distribution;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the amount
of the shortfall and the allocation thereof as between principal and
interest;
(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on such Distribution
Date;
(v) for each Loan Group, the Pool Stated Principal Balance for the
following Distribution Date;
(vi) the Senior Percentage for each Loan Group, and the Subordinate
Percentage for the following Distribution Date, the Total Senior
Percentage and the Aggregate Subordinate Percentage for the following
Distribution Date;
(vii) the amount of the Servicing Fee paid to or retained by each
Servicer with respect to each Loan Group and such Distribution Date;
(viii)the amount of the Master Servicing Fee paid to the Master
Servicer with respect to such Distribution Date;
(ix) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(x) for each Loan Group, the amount of Periodic Advances included in
the distribution on such Distribution Date and the aggregate amount of
Periodic Advances outstanding as of the close of business on such
Distribution Date;
(xi) for each Loan Group, the number and aggregate principal amounts
of Mortgage Loans (A) delinquent (exclusive of Mortgage Loans in
foreclosure) (1) 1 to 30 days (2) 31 to 60 days (3) 61 to 90 days and (4)
91 or more days and (B) in foreclosure, as of the close of business on the
last day of the calendar month preceding such Distribution Date;
(xii) for each Loan Group, with respect to any Mortgage Loan that
became an REO Property during the preceding calendar month, the loan
number and Stated Principal Balance of such Mortgage Loan as of the close
of business on the Determination Date preceding such Distribution Date and
the date of acquisition thereof;
(xiii) for each Loan Group, the total number and principal balance
of any REO Properties (and market value, if available) as of the close of
business on the Determination Date preceding such Distribution Date;
(xiv) for each Loan Group, the Senior Prepayment Percentage and the
Subordinate Prepayment Percentage for the following Distribution Date;
(xv) for each Loan Group, the aggregate amount of Realized Losses
incurred during the preceding calendar month and for each Group or any
Class A-PO Deferred Amounts for such Distribution Date;
(xvi) the Class 1-A-WIO and Class 2-A-WIO Notional Amount for such
Distribution Date.
(b) No later than each Distribution Date, the Securities
Administrator, based upon information supplied to it on the Master Servicer's
Certificates, shall make available to each Holder of a Certificate, each Rating
Agency and the Master 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 (x) of Section 5.04(a), the amounts shall be expressed as a dollar amount
per Certificate with a $1,000 denomination.
On each Distribution Date, the Securities Administrator shall
prepare and furnish to each Financial Market Service, in electronic or such
other format and media mutually agreed upon by the Securities Administrator, the
Financial Market Service and the Depositor, the information contained in the
statement described in Section 5.04(a) for such Distribution Date.
The Securities Administrator will make the monthly statement to
Certificateholders (and, at its option, any additional files containing the same
information in an alternative format) available each month to
Certificateholders, and other parties to this Agreement via the Securities
Administrator's Internet website. The Securities Administrator's Internet
website shall initially be located at "xxx.xxxxxxx.xxx." Assistance in using the
website can be obtained by calling the Securities Administrator's customer
service desk at (000) 000-0000. Parties that are unable to use the website are
entitled to have a paper copy mailed to them via first class mail by calling the
customer service desk and indicating such. The Securities Administrator shall
have the right to change the way the monthly statements to Certificateholders
are distributed in order to make such distribution more convenient and/or more
accessible to the above parties and the Securities Administrator shall provide
timely and adequate notification to all above parties regarding any such
changes.
Within a reasonable period of time after the end of each calendar
year, the Securities Administrator shall furnish to each Person who at any time
during the calendar year was the Holder of a Certificate, if requested in
writing by such Person, a statement containing the information set forth in
clauses (i) and (ii) of Section 5.04(a), in each case aggregated for such
calendar year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Securities Administrator shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Securities Administrator pursuant to any
requirements of the Code as from time to time in force.
The Securities Administrator shall deliver to the Holders of
Certificates any reports or information the Securities Administrator is required
by this Agreement or the Code, Treasury Regulations or REMIC Provisions to
deliver to the Holders of Certificates, and the Securities Administrator shall
prepare and provide to the Certificateholders (by mail, telephone, or
publication as may be permitted by applicable Treasury Regulations) such other
reasonable information as the Securities Administrator deems necessary or
appropriate or is required by the Code, Treasury Regulations, and the REMIC
Provisions including, but not limited to, (i) information to be reported to the
Holders of the Residual Certificates for quarterly notices on Schedule Q (Form
1066) (which information shall be forwarded to the Holders of the Residual
Certificates by the Securities Administrator), (ii) information to be provided
to the Holders of Certificates with respect to amounts which should be included
as interest and original issue discount in such Holders' gross income and (iii)
information to be provided to all Holders of Certificates setting forth the
percentage of each REMIC's assets, determined in accordance with Treasury
Regulations using a convention, not inconsistent with Treasury Regulations,
selected by the Securities Administrator in its absolute discretion, that
constitute real estate assets under Section 856 of the Code, and assets
described in Section 7701(a)(19)(C) of the Code; provided, however, that in
setting forth the percentage of such assets of each REMIC, nothing contained in
this Agreement, including without limitation Section 7.03 hereof, shall be
interpreted to require the Securities Administrator periodically to appraise the
fair market values of the assets of the Trust Estate or to indemnify the Trust
Estate or any Certificateholders from any adverse federal, state or local tax
consequences associated with a change subsequently required to be made in the
Depositor's initial good faith determinations of such fair market values (if
subsequent determinations are required pursuant to the REMIC Provisions) made
from time to time.
Section 5.05 Tax Returns and Reports to Certificateholders.
(a) For federal income tax purposes, each REMIC shall have a
calendar year taxable year and shall maintain its books on the accrual method of
accounting.
(b) The Securities Administrator shall prepare or cause to be
prepared, shall cause to be timely signed by the Trustee, and shall file or
cause to be filed with the Internal Revenue Service and applicable state or
local tax authorities income tax information returns for each taxable year with
respect to 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 Securities Administrator shall furnish or cause to be
furnished to the Internal Revenue Service, on Form 8811 or as otherwise required
by the Code or the Treasury Regulations, the name, title, address and telephone
number of the person that Holders of the Certificates may contact for tax
information relating thereto, together with such additional information at the
time or times and in the manner required by the Code or the Treasury
Regulations. Such federal, state, or local income tax or information returns
shall be signed by the Trustee, or such other Person as may be required to sign
such returns by the Code, the Treasury Regulations or state or local tax laws,
regulations, or rules.
(c) In the first federal income tax return of 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 Securities Administrator 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
Securities Administrator. The Securities Administrator shall afford the Tax
Matters Person, upon reasonable notice during normal business hours, access to
all records maintained by the Securities Administrator in respect of its duties
hereunder and access to officers of the Securities Administrator responsible for
performing such duties. Upon request, the Securities Administrator shall furnish
the Tax Matters Person with its most recent report of condition published
pursuant to law or to the requirements of its supervisory or examining authority
publicly available. The Securities Administrator shall make available to the Tax
Matters Person such books, documents or records relating to the Securities
Administrator's services hereunder as the Tax Matters Person shall reasonably
request. The Tax Matters Person shall not have any responsibility or liability
for any action or failure to act by the Securities Administrator and is not
obligated to supervise the performance of the Securities Administrator under
this Agreement or otherwise.
Section 5.08 REMIC Related Covenants. For as long as the Trust shall
exist, the Trustee, the Securities Administrator, the Depositor and the Master
Servicer shall act in accordance herewith to assure continuing treatment of the
Upper-Tier REMIC and Lower-Tier REMIC as REMICs and avoid the imposition of tax
on either REMIC. In particular:
(a) Neither the Securities Administrator nor the Trustee shall
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 Master Servicer shall not contribute to the Trust Estate and the Trustee
shall not accept property unless substantially all of the property held in each
REMIC constitutes either "qualified mortgages" or "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 Securities Administrator, on behalf of the Trustee, shall
not accept on behalf of any REMIC any fee or other compensation for services and
none of the Securities Administrator, the Trustee or the Master Servicer shall
knowingly accept, on behalf of the Trust Estate any income from assets other
than those permitted to be held by a REMIC.
(d) Neither the Securities Administrator, on behalf of the Trustee,
nor the Trustee shall sell or permit the sale of all or any portion of the
Mortgage Loans (other than in accordance with Sections 2.02 or 3.16(g)), unless
such sale is pursuant to a "qualified liquidation" of the applicable REMIC as
defined in Code Section 860F(a)(4)(A) and in accordance with Article X. (e) The
Securities Administrator shall maintain books with respect to the Trust and each
REMIC on a calendar year taxable year and on an accrual basis.
None of the Master Servicer, the Securities Administrator or the
Trustee shall engage in a "prohibited transaction" (as defined in Code Section
860F(a)(2)), except that, with the prior written consent of the Master Servicer
and the Depositor, the Securities Administrator may engage in the activities
otherwise prohibited by the foregoing paragraphs (b), (c) and (d); provided that
the Master Servicer shall have delivered to the Securities Administrator an
Opinion of Counsel to the effect that such transaction will not result in the
imposition of a tax on either of the Upper-Tier and Lower-Tier REMIC and will
not disqualify either REMIC from treatment as a REMIC; and, provided further,
that the Master Servicer shall have demonstrated to the satisfaction of the
Securities Administrator that such action will not adversely affect the rights
of the Holders of the Certificates and the Securities Administrator and that
such action will not adversely impact the rating of the Certificates.
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 0-X-0, 0-X-X, 0-X-XX, 0-X-XXX, 0-X-0, 2-A-WIO, A-PO, X-0, X-0, X-0,
X-0, X-0, B-6 and C (reverse of all Certificates) and shall, on original issue,
be executed by the Securities Administrator and shall be authenticated and
delivered by the Securities Administrator to or upon the order of the Depositor
upon receipt by the Trustee of the documents specified in Section 2.01. The
Senior Certificates (other than the Class A-PO, Class 1-A-WIO, Class 2-A-WIO,
Class 1-A-R and Class 1-A-LR Certificates) shall be available to investors in
interests representing minimum dollar Certificate Balances (or notional amounts)
of $1,000 and integral multiples of $1 in excess thereof. The Class 1-A-WIO and
Class 2-A-WIO Certificates shall be available to investors in interests
representing minimum dollar notional amounts of $10,000,000 and integral
multiples of $1,000 in excess thereof. The Class A-PO and Subordinate
Certificates shall be available to investors in interests representing minimum
dollar Certificate Balances (or notional amounts) of $25,000 and integral dollar
multiples of $1 in excess thereof. The Class 1-A-R and Class 1-A-LR Certificates
shall be in a minimum denomination of $50. The Senior Certificates (other than
the Class 1-A-R and Class 1-A-LR 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 Securities Administrator by an authorized officer or signatory.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures were affixed, authorized to sign on behalf of
the Securities Administrator shall bind the Securities Administrator,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the execution and delivery of such Certificates or did not
hold such offices or positions at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless such Certificate shall have been manually authenticated by the
Securities Administrator substantially in the form provided for herein, and such
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
Section 6.02 Registration of Transfer and Exchange of Certificates.
(a) The Securities Administrator shall cause to be kept at an office
or agency in the city in which the Corporate Trust Office of the Securities
Administrator is located a Certificate Register in which, subject to such
reasonable regulations as it may prescribe, the Securities Administrator shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Securities Administrator shall initially
serve as Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided.
(b) At the option of the Certificateholders, Certificates may be
exchanged for other Certificates of authorized denominations of a like Class,
tenor and aggregate Percentage Interest, upon surrender of the Certificates to
be exchanged at any such office or agency. Whenever any Certificates are so
surrendered for exchange, the Securities Administrator shall execute and the
Securities Administrator shall authenticate and deliver the Certificates which
the Certificateholder making the exchange is entitled to receive. Every
Certificate presented or surrendered for transfer or exchange shall (if so
required by the Securities Administrator or the Certificate Registrar) be duly
endorsed by, or be accompanied by a written instrument of transfer in form
satisfactory to the Securities Administrator and the Certificate Registrar duly
executed by, the Holder thereof or its attorney duly authorized in writing.
(c) (i) Except as provided in paragraph (c)(iii) below, the
Book-Entry Certificates shall at all times remain registered in the name
of the Depository or its nominee and at all times: (A) registration of the
Certificates may not be transferred by the Securities Administrator except
to another Depository; (B) the Depository shall maintain book-entry
records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (C) ownership and
transfers of registration of the Book-Entry Certificates on the books of
the Depository shall be governed by applicable rules established by the
Depository; (D) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (E) the Securities
Administrator shall deal with the Depository as the representative of the
Certificate Owners of the Book-Entry Certificates for purposes of
exercising the rights of Holders under this Agreement, and requests and
directions for and votes of the Depository shall not be deemed to be
inconsistent if they are made with respect to different Certificate
Owners; and (F) the Securities Administrator may rely and shall be fully
protected in relying upon information furnished by the Depository with
respect to its Depository Participants and furnished by the Depository
Participants with respect to indirect participating firms and persons
shown on the books of such indirect participating firms as direct or
indirect Certificate Owners.
(ii) All transfers by Certificate Owners of Book-Entry Certificates
shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing such Certificate
Owner. Each Depository Participant shall only transfer Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for
which it acts as agent in accordance with the Depository's normal
procedures.
(iii) If (A) (1) the Depository or the Depositor advises the
Securities Administrator in writing that the Depository is no longer
willing or able to properly discharge its responsibilities as Depository,
and (2) the Securities Administrator or the Depositor is unable to locate
a qualified successor, (B) the Depositor at its option advises the
Securities Administrator in writing that it elects to terminate the
book-entry system through the Depository or (C) after the occurrence of an
Event of Default, Certificate Owners representing at least 51% of the
aggregate Class Certificate Balances of the Book-Entry Certificates
together advise the Securities Administrator and the Depository through
the Depository Participants in writing that the continuation of a
book-entry system through the Depository is no longer in the best
interests of the Certificate Owners, the Securities Administrator shall
notify all Certificate Owners, through the Depository, of the occurrence
of any such event and of the availability of definitive, fully-registered
Certificates (the "Definitive Certificates") to Certificate Owners
requesting the same. Upon surrender to the Securities Administrator of the
related Class of Certificates by the Depository (or by the Certificate
Custodian, if it holds such Class on behalf of the Depository),
accompanied by the instructions from the Depository for registration, the
Securities Administrator shall issue the Definitive Certificates. None of
the Master Servicer, the Depositor, the Securities Administrator or the
Trustee shall be liable for any delay in delivery of such instruction and
may conclusively rely on, and shall be protected in relying on, such
instructions. The Depositor shall provide the Securities Administrator
with an adequate inventory of certificates to facilitate the issuance and
transfer of Definitive Certificates. Upon the issuance of Definitive
Certificates, the Securities Administrator shall recognize the Holders of
the Definitive Certificates as Certificateholders hereunder.
(d) No transfer of a Private Certificate shall be made unless such
transfer is exempt from the registration requirements of the 1933 Act and any
applicable state securities laws or is made in accordance with the 1933 Act and
such laws. In the event of any such transfer, (i) unless such transfer is made
in reliance on Rule 144A under the 1933 Act, the Securities Administrator or the
Depositor may require a written Opinion of Counsel (which may be in-house
counsel) acceptable to and in form and substance reasonably satisfactory to the
Securities Administrator and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act and such laws or is being made pursuant to the 1933
Act and such laws, which Opinion of Counsel shall not be an expense of the
Securities Administrator or the Depositor and (ii) the Securities Administrator
shall require a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached hereto as Exhibit G-1 and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached hereto either as Exhibit G-2A or as Exhibit G-2B, which
certificates shall not be an expense of the Securities Administrator or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both. The Depositor shall provide to
any Holder of a Private Certificate and any prospective transferees designated
by any such Holder, information regarding the related Certificates and the
Mortgage Loans and such other information as shall be necessary to satisfy the
condition to eligibility set forth in Rule 144A(d)(4) for transfer of any such
certificate without registration thereof under the 1933 Act pursuant to the
registration exemption provided by Rule 144A. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Securities Administrator and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
(e) No transfer of an ERISA Restricted Certificate shall be made
unless the transferee delivers to the Securities Administrator either (i) a
representation letter in the form of Exhibit H from the transferee of such
Certificate, which representation letter shall not be an expense of the
Depositor, the Trustee, the Securities Administrator or the Master Servicer, or
(ii) in the case of any ERISA Restricted Certificate presented for registration
in the name of an employee benefit plan or arrangement, including an individual
retirement account, subject to ERISA, the Code, or any federal, state or local
law ("Similar Law") which is similar to ERISA or the Code (collectively, a
"Plan"), or a trustee or custodian of any of the foregoing, an Opinion of
Counsel in form and substance satisfactory to the Securities Administrator and
the Master Servicer to the effect that the purchase or holding of such ERISA
Restricted Certificate by or on behalf of such Plan will not result in the
assets of the Trust Estate being deemed to be "plan assets" and subject to the
prohibited transaction provisions of ERISA, the Code or Similar Law and will not
subject the Trustee, the Depositor, the Securities Administrator or the Master
Servicer to any obligation in addition to those undertaken in this Agreement,
which Opinion of Counsel shall not be an expense of the Securities
Administrator, the Trustee or the Master Servicer. Any transferee of an ERISA
Restricted Certificate that does not comply with either clause (i) or (ii) of
the preceding sentence will be deemed to have made one of the representations
set forth in Exhibit H. For purposes of clause (i) of the second preceding
sentence, such representation shall be deemed to have been made to the
Certificate Registrar by the acceptance by a Certificate Owner of a Book-Entry
Certificate of the beneficial interest in any such Class of ERISA-Restricted
Certificates, unless the Certificate Registrar shall have received from the
transferee an alternative representation acceptable in form and substance to the
Depositor. Notwithstanding anything else to the contrary herein, any purported
transfer of an ERISA Restricted Certificate to or on behalf of a Plan without
the delivery to the Securities Administrator and the Master Servicer of an
Opinion of Counsel satisfactory to the Securities Administrator and the Master
Servicer as described above shall be void and of no effect.
Neither the Securities Administrator nor the Certificate Registrar
shall have any liability for transfers of Book-Entry Certificates made through
the book-entry facilities of the Depository or between or among any Depository
Participants or Certificate Owners, made in violation of applicable
restrictions. The Securities Administrator may rely and shall be fully protected
in relying upon information furnished by the Depository with respect to its
Depository Participants and furnished by the Depository Participants with
respect to indirect participating firms and Persons shown on the books of such
indirect participating firms as direct or indirect Certificate Owners.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Securities Administrator shall be under no liability to
any Person for any registration of transfer of any ERISA Restricted Certificate
that is in fact not permitted by this Section 6.02 or for making any payments
due on such Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
transfer was registered by the Securities Administrator in accordance with the
foregoing requirements.
(f) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Securities Administrator of any change or impending change in
its status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Residual
Certificate unless such Ownership Interest is a pro rata undivided
interest.
(iii) In connection with any proposed transfer of any Ownership
Interest in a Residual Certificate, the Securities Administrator shall
require delivery to it, in form and substance satisfactory to it, of an
affidavit in the form of Exhibit I hereto from the proposed transferee.
(iv) Notwithstanding the delivery of an affidavit by a proposed
transferee under clause (iii) above, if a Responsible Officer of the
Securities Administrator has actual knowledge that the proposed transferee
is not a Permitted Transferee, no transfer of any Ownership Interest in a
Residual Certificate to such proposed transferee shall be effected.
(v) No Ownership Interest in a Residual Certificate may be purchased
by or transferred to any Person that is not a U.S. Person, unless (A) such
Person holds such Residual Certificate in connection with the conduct of a
trade or business within the United States and furnishes the transferor
and the Securities Administrator with an effective Internal Revenue
Service Form W-8ECI (or successor thereto) or (B) the transferee delivers
to both the transferor and the Securities Administrator an Opinion of
Counsel from a nationally-recognized tax counsel to the effect that such
transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of a Residual
Certificate will not be disregarded for federal income tax purposes.
(vi) Any attempted or purported transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
6.02 shall be absolutely null and void and shall vest no rights in the
purported transferee. If any purported transferee shall, in violation of
the provisions of this Section 6.02, become a Holder of a Residual
Certificate, then the prior Holder of such Residual Certificate that is a
Permitted Transferee shall, upon discovery that the registration of
transfer of such Residual Certificate was not in fact permitted by this
Section 6.02, be restored to all rights as Holder thereof retroactive to
the date of registration of transfer of such Residual Certificate. The
Securities Administrator shall be under no liability to any Person for any
registration of transfer of a Residual Certificate that is in fact not
permitted by this Section 6.02 or for making any distributions due on such
Residual Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of the Agreement so long as
the transfer was registered in accordance with this Section 6.02. The
Securities Administrator shall be entitled to recover from any Holder of a
Residual Certificate that was in fact not a Permitted Transferee at the
time such distributions were made all distributions made on such Residual
Certificate. Any such distributions so recovered by the Securities
Administrator shall be distributed and delivered by the Securities
Administrator to the prior Holder of such Residual Certificate that is a
Permitted Transferee.
(vii) If any Person other than a Permitted Transferee acquires any
Ownership Interest in a Residual Certificate in violation of the
restrictions in this Section 6.02, then the Securities Administrator,
based on information provided to the Securities Administrator by the
Master Servicer, will provide to the Internal Revenue Service, and to the
Persons specified in Section 860E(e)(3) and (6) of the Code, information
needed to compute the tax imposed under Section 860E(e) of the Code on
transfers of residual interests to disqualified organizations. The
expenses of the Securities Administrator under this clause (vii) shall be
reimbursable by the Trust.
(viii) No Ownership Interest in a Residual Certificate shall be
acquired by a Plan or any Person acting on behalf of a Plan.
(g) [Reserved]
(h) No service charge shall be imposed for any transfer or exchange
of Certificates of any Class, but the Securities Administrator may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be
destroyed by the Certificate Registrar.
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Certificate Registrar or the
Certificate Registrar receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate, and (b) there is delivered to the Securities
Administrator, the Trustee, the Depositor and the Certificate Registrar such
security or indemnity reasonably satisfactory to each, to save each of them
harmless, then, in the absence of actual notice to the Securities Administrator
or the Certificate Registrar that such Certificate has been acquired by a bona
fide purchaser, the Securities Administrator shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor, Class and Percentage Interest but
bearing a number not contemporaneously outstanding. Upon the issuance of any new
Certificate under this Section, the Securities Administrator may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Securities Administrator and the Certificate Registrar)
connected therewith. Any duplicate Certificate issued pursuant to this Section
shall constitute complete and indefeasible evidence of ownership in the Trust,
as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 6.04 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Depositor, the Master Servicer,
the Trustee, the Securities Administrator, the Certificate Registrar and any
agent of the Depositor, the Master Servicer, the Trustee, the Securities
Administrator or the Certificate Registrar may treat the Person in whose name
any Certificate is registered as the owner of such Certificate for the purpose
of receiving distributions pursuant to Section 5.01 and for all other purposes
whatsoever, and none of the Depositor, the Master Servicer, the Trustee, the
Securities Administrator, the Certificate Registrar or any agent of the Master
Servicer, the Trustee, the Securities Administrator or the Certificate Registrar
shall be affected by notice to the contrary.
ARTICLE VII
THE DEPOSITOR AND THE MASTER SERVICER
Section 7.01 Respective Liabilities of the Depositor and the Master
Servicer. The Depositor and the Master Servicer shall each be liable in
accordance herewith only to the extent of the obligations specifically and
respectively imposed upon and undertaken by the Depositor and the Master
Servicer herein. By way of illustration and not limitation, the Depositor is not
liable for the master servicing and administration of the Mortgage Loans, nor is
it obligated by Section 8.01 to assume any obligations of the Master Servicer or
to appoint a designee to assume such obligations, nor is it liable for any other
obligation hereunder that it may, but is not obligated to, assume unless it
elects to assume such obligation in accordance herewith.
Section 7.02 Merger or Consolidation of the Depositor or the Master
Servicer. The Depositor and the Master Servicer will each keep in full effect
its existence, rights and franchises as a separate entity under the laws
governing its organization, and will each obtain and preserve its qualification
to do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
Any Person into which the Depositor or the Master Servicer may be
merged or consolidated, or any corporation resulting from any merger or
consolidation to which the Depositor or the Master Servicer shall be a party, or
any Person succeeding to the business of the Depositor or the Master Servicer,
shall be the successor of the Depositor or the Master Servicer, as the case may
be, hereunder, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person to
the Master Servicer shall be qualified to service mortgage loans on behalf of
FNMA or FHLMC.
Section 7.03 Limitation on Liability of the Depositor, the Master
Servicer and Others. None of the Depositor, the Master Servicer or any of the
directors, officers, employees or agents of the Depositor or of the Master
Servicer shall be under any liability to the Trust Estate or the
Certificateholders for any action taken or for refraining from the taking of any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Depositor, the
Master Servicer or any such Person against any breach of warranties or
representations made herein or any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties or by reason of reckless disregard of obligations and duties
hereunder. The Depositor, the Master Servicer and any director, officer,
employee or agent of the Depositor or the Master Servicer may rely in good faith
on any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Depositor, the Master
Servicer and any director, officer, employee or agent of the Depositor or the
Master Servicer shall be indemnified by the Trust Estate and held harmless
against any loss, liability or expense incurred in connection with any legal
action relating to this Agreement or the Certificates, other than any loss,
liability or expense related to any specific Mortgage Loan or Mortgage Loans
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) and any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties hereunder or by reason of reckless disregard of obligations and duties
hereunder. Neither of the Depositor nor the Master Servicer shall be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its respective duties under this Agreement and which in its
opinion may involve it in any expense or liability; provided, however, that the
Depositor or the Master Servicer may in its discretion undertake any such action
which it may deem necessary or desirable in respect to this Agreement and the
rights and duties of the parties hereto and the interests of the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Estate, and the Depositor and the Master Servicer shall
be entitled to be reimbursed therefor out of amounts attributable to the
Mortgage Loans on deposit in the Certificate Account as provided by Section
3.12.
Section 7.04 Depositor and Master Servicer Not to Resign. Subject to
the provisions of Section 7.02, neither the Depositor nor the Master Servicer
shall resign from its respective obligations and duties hereby imposed on it
except upon determination that its duties hereunder are no longer permissible
under applicable law. Any such determination permitting the resignation of the
Depositor or the Master Servicer shall be evidenced by an Opinion of Counsel to
such effect delivered to the Securities Administrator. No such resignation by
the Master Servicer shall become effective until the Securities Administrator or
a successor Master Servicer shall have assumed the Master Servicer's
responsibilities and obligations in accordance with Section 8.05 hereof.
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default. If any one of the following events
("Events of Default") shall occur and be continuing:
(a) any failure by the Master Servicer to deposit amounts in the
Certificate Account in the amount and manner provided herein so as to enable the
Securities Administrator to distribute to Holders of Certificates any payment
required to be made under the terms of such Certificates and this Agreement
which continues unremedied for a period of five days; or
(b) failure on the part of the Master Servicer duly to observe or
perform in any material respect any other covenants or agreements of the Master
Servicer set forth in the Certificates or in this Agreement, which covenants and
agreements continue unremedied for a period of 30 days after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Master Servicer by the Securities Administrator, the Trustee
or the Depositor, or to the Master Servicer, the Depositor, the Securities
Administrator and the Trustee by the Holders of Certificates evidencing Voting
Rights aggregating not less than 25% of all Certificates affected thereby; or
(c) the entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the appointment of
a conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings against the Master
Servicer, or for the winding up or liquidation of the Master Servicer's affairs,
and the continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(d) the consent by the Master Servicer to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
the Master Servicer or of or relating to substantially all of its property; or
the Master Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations;
then, and in each and every such case, so long as an Event of Default shall not
have been remedied by the Master Servicer, either the Trustee or the Depositor
may, and at the direction of the Holders of Certificates evidencing Voting
Rights aggregating not less than 51% of all Certificates affected thereby shall,
by notice then given in writing to the Master Servicer (and to the Trustee, if
given by the Depositor, and to the Depositor, if given by the Trustee),
terminate all of the rights and obligations of the Master Servicer under this
Agreement. On or after the receipt by the Master Servicer of such written
notice, all authority and power of the Master Servicer under this Agreement,
whether with respect to the Certificates or the Mortgage Loans or otherwise,
shall pass to and be vested in the Trustee pursuant to and under this Section
8.01 and Section 8.05(a), unless and until such time as the Trustee shall
appoint a successor Master Servicer pursuant to Section 8.05, and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, any
and all documents and other instruments, and to do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of the Mortgage
Loans and related documents, or otherwise, including, without limitation, the
recordation of the assignments of the Mortgage Loans to it. The Master Servicer
agrees to cooperate with the Trustee in effecting the termination of the
responsibilities and rights of the Master Servicer hereunder, including, without
limitation, the transfer to the Trustee for the administration by it of all cash
amounts that have been deposited by the Master Servicer in the Certificate
Account or thereafter received by the Master Servicer with respect to the
Mortgage Loans. Upon obtaining notice or knowledge of the occurrence of any
Event of Default, the Person obtaining such notice or knowledge shall give
prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register and to each Rating Agency. All
costs and expenses (including attorneys' fees) incurred in connection with
transferring the Mortgage Files to the successor Master Servicer and amending
this Agreement to reflect such succession as Master Servicer pursuant to this
Section 8.01 shall be paid by the predecessor Master Servicer. Notwithstanding
the termination of the Master Servicer pursuant hereto, the Master Servicer
shall remain liable for any causes of action arising out of any Event of Default
occurring prior to such termination.
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 Master Servicer or any successor Master Servicer from its
rights and duties as servicer hereunder) at the request, order or direction of
any of the Certificateholders, unless such Certificateholders shall have offered
to the Trustee reasonable security or indemnity satisfactory to it against the
costs, expenses and liabilities which may be incurred therein or thereby and,
provided further, that, subject to the provisions of Section 9.01, the Trustee
shall have the right to decline to follow any such direction if the Trustee,
based upon an Opinion of Counsel, determines that the action or proceeding so
directed may not lawfully be taken or if the Trustee in good faith determines
that the action or proceeding so directed would subject the Trustee to a risk of
personal liability or be unjustly prejudicial to the non-assenting
Certificateholders.
Section 8.04 Action upon Certain Failures of the Servicer and upon
Event of Default. In the event that a Responsible Officer of the Trustee shall
have actual knowledge of any failure of the Master Servicer specified in Section
8.01(a) or (b) which would become an Event of Default upon the Master Servicer's
failure to remedy the same after notice, the Trustee shall give notice thereof
to the Master Servicer. If a Responsible Officer of the Trustee shall have
knowledge of an Event of Default, the Trustee shall give prompt written notice
thereof to the Certificateholders.
Section 8.05 Trustee to Act; Appointment of Successor.
(a) Within 90 days of the time the Master Servicer receives a notice
of termination pursuant to Section 8.01, the Trustee (or other named successor)
shall be the successor in all respects to the Master 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 Master Servicer by the terms and provisions
hereof or shall appoint a successor pursuant to Section 3.07. Notwithstanding
the foregoing, (i) the parties hereto agree that the Trustee, in its capacity as
successor Master Servicer, immediately will assume all of the obligations of the
Master Servicer under this Agreement, (ii) the Trustee, in its capacity as
successor Master Servicer, shall not be responsible for the lack of information
and/or documents that it cannot obtain through reasonable efforts and (iii)
under no circumstances shall any provision of this Agreement be construed to
require the Trustee, acting in its capacity as successor to the Master Servicer
in its obligation to advance, expend or risk its own funds or otherwise incur
any financial liability in the performance of its duties hereunder if it shall
have reasonable grounds for believing that such funds are non-recoverable.
Subject to Section 8.05(b), as compensation therefor, the Trustee shall be
entitled to such compensation as the terminated Master 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 Master Servicer hereunder in the assumption of all or any part of
the responsibilities, duties or liabilities of the Master Servicer hereunder;
provided, however, that any such institution appointed as successor Master
Servicer shall not, as evidenced in writing by each Rating Agency, adversely
affect the then current rating of any Class of Certificates immediately prior to
the termination of the terminated Master Servicer. The appointment of a
successor Master Servicer shall not affect any liability of the predecessor
Master Servicer which may have arisen under this Agreement prior to its
termination as Master Servicer, nor shall any successor Master Servicer be
liable for any acts or omissions of the predecessor Master Servicer or for any
breach by the Master Servicer of any of its representations or warranties
contained herein or in any related document or agreement. Pending appointment of
a successor to the terminated Master Servicer hereunder, unless the Trustee is
prohibited by law from so acting, the Trustee shall act in such capacity as
provided above. The Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. All Master Servicing Transfer Costs shall be paid by the predecessor
Master Servicer upon presentation of reasonable documentation of such costs, and
if such predecessor Master Servicer defaults in its obligation to pay such
costs, such costs shall be paid by the successor Master Servicer or the Trustee
(in which case the successor Master Servicer or the Trustee shall be entitled to
reimbursement therefor from the assets of the Trust).
(b) In connection with the appointment of a successor Master
Servicer or the assumption of the duties of the Master Servicer, as specified in
Section 8.05(a), the Trustee may make such arrangements for the compensation of
such successor as it and such successor agree.
(c) Any successor, including the Trustee, to the Master Servicer as
master servicer shall during the term of its service as master servicer maintain
in force (i) a policy or policies of insurance covering errors and omissions in
the performance of its obligations as master servicer hereunder and (ii) a
fidelity bond in respect of its officers, employees and agents to the same
extent as the Master Servicer is so required pursuant to Section 3.03.
Section 8.06 Notification to Certificateholders. Upon any
termination or appointment of a successor to the Master Servicer pursuant to
this Article VIII, the Securities Administrator shall give prompt written notice
thereof to Certificateholders at their respective addresses appearing in the
Certificate Register and to each Rating Agency.
ARTICLE IX
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee and Securities Administrator.
(a) The Trustee and the Securities Administrator, prior to the
occurrence of an Event of Default and after the curing or waiver of all Events
of Default which may have occurred, each undertake to perform such duties and
only such duties as are specifically set forth in this Agreement as duties of
the Trustee and the Securities Administrator, respectively. In case an Event of
Default has occurred of which a Responsible Officer of the Trustee shall have
actual knowledge (which has not been cured or waived), the Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and use
the same degree of care and skill in their exercise as a reasonably prudent
investor would exercise or use under the circumstances in the conduct of such
investor's own affairs. In case an Event of Default has occurred of which a
Responsible Officer of the Securities Administrator shall have actual knowledge
(which has not been cured or waived), the Securities Administrator shall
exercise such of the rights and powers vested in it by this Agreement, and use
the same degree of care and skill in their exercise as a reasonably prudent
investor would exercise or use under the circumstances in the conduct of such
investor's own affairs.
The Trustee and the Securities Administrator, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee and the Securities Administrator
which are specifically required to be furnished pursuant to any provision of
this Agreement, shall examine them to determine whether they conform to the
requirements of this Agreement; provided, however, that neither the Trustee nor
the Securities Administrator shall be responsible for the accuracy of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Master Servicer or the Depositor hereunder.
(b) No provision of this Agreement shall be construed to relieve the
Trustee or the Securities Administrator from liability for its own grossly
negligent action, its own grossly negligent failure to act or its own willful
misfeasance; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all such Events of Default which may have occurred,
the duties and obligations of the Trustee and the Securities Administrator
shall be determined solely by the express provisions of this Agreement,
the Trustee and the Securities Administrator shall not be liable except
for the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and the Securities Administrator
and, in the absence of bad faith on the part of the Trustee and the
Securities Administrator, the Trustee and the Securities Administrator may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and the Securities Administrator by the Depositor
or the Master Servicer and which on their face, do not contradict the
requirements of this Agreement;
(ii) The Trustee (in its individual capacity) shall not be
personally liable for an error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Trustee, unless it
shall be proved that the Trustee was grossly negligent in ascertaining the
pertinent facts;
(iii) The Trustee (in its individual capacity) and the Securities
Administrator (in its individual capacity) shall not be personally liable
with respect to any action taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of Certificateholders as
provided in Section 8.03;
(iv) The Trustee shall not be charged with knowledge of any default
specified in clauses (a) and (b) of Section 8.01 or an Event of Default
under clauses (c) and (d) of Section 8.01 unless a Responsible Officer of
the Trustee assigned to and working in the Corporate Trust Office of the
Trustee obtains actual knowledge of such failure or event or any
Responsible Officer of the Trustee receives written notice of such failure
or event at its Corporate Trust Office from the Master Servicer, the
Securities Administrator, the Depositor or any Certificateholder. The
Securities Administrator shall not be charged with knowledge of any
default specified in clauses (a) and (b) of Section 8.01 or an Event of
Default under clauses (c) and (d) of Section 8.01 unless a Responsible
Officer of the Securities Administrator assigned to and working in the
Corporate Trust Office of the Securities Administrator obtains actual
knowledge of such failure or event or any Responsible Officer of the
Securities Administrator receives written notice of such failure or event
at its Corporate Trust Office from the Master Servicer, the Trustee, the
Depositor or any Certificateholder; and
(v) Except to the extent provided in Section 8.05 in respect of the
Trustee, no provision in this Agreement shall require the Trustee or the
Securities Administrator to expend or risk its own funds or otherwise
incur any personal financial liability in the performance of any of its
duties as Trustee or Securities Administrator hereunder, or in the
exercise of any of its rights or powers, if the Trustee or the Securities
Administrator shall have reasonable grounds for believing that repayment
of funds or adequate indemnity or security satisfactory to it against such
risk or liability is not reasonably assured to it and none of the
provisions contained in this Agreement shall in any event require the
Securities Administrator to perform, or be responsible for the manner of
performance of, any of the obligations of the Master Servicer under this
Agreement.
Section 9.02 Certain Matters Affecting the Trustee and the
Securities Administrator.
Except as otherwise provided in Section 9.01:
(i) The Trustee and the Securities Administrator may request and
rely upon and shall be protected in acting or refraining from acting upon
any resolution, Officer's Certificate, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties and the manner of obtaining consents and of
evidencing the authorization of the execution thereof by
Certificateholders shall be subject to the reasonable regulations as the
Trustee and the Securities Administrator, as applicable, may prescribe;
(ii) The Trustee and the Securities Administrator may consult with
counsel and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such Opinion
of Counsel;
(iii) Neither the Trustee nor the Securities Administrator shall be
under any obligation to exercise any of the trusts or powers vested in it
by this Agreement or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any
of the Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee or the
Securities Administrator, as the case may be, reasonable security or
indemnity satisfactory to it against the costs, expenses and liabilities
which may be incurred therein or thereby; nothing contained herein shall,
however, relieve the Securities Administrator of the obligation, upon the
occurrence of an Event of Default (which has not been cured or waived), to
exercise such of the rights and powers vested in it by this Agreement, and
to use the same degree of care and skill in their exercise as a prudent
investor would exercise or use under the circumstances in the conduct of
such investor's own affairs;
(iv) Neither the Trustee nor the Securities Administrator shall be
personally liable for any action taken, suffered or omitted by it in good
faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default which may have
occurred, neither the Trustee nor the Securities Administrator shall be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing so to do by Holders of Certificates of any Class
evidencing, as to such Class, Percentage Interests, aggregating not less
than 50%; provided, however, that if the payment within a reasonable time
to the Trustee or the Securities Administrator of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee or the Securities
Administrator, as applicable, not reasonably assured to the Trustee or the
Securities Administrator, as applicable, by the security afforded to it by
the terms of this Agreement, the Trustee or the Securities Administrator,
as the case may be, may require reasonable indemnity or security
satisfactory to it against such expense or liability or payment of such
estimated expenses as a condition to so proceeding;
(vi) The Trustee and the Securities Administrator may each execute
any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, attorneys, accountants, custodian
or independent contractor; and
(vii) the right of the Trustee or the Securities Administrator to
perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and neither the Trustee nor the Securities
Administrator shall be answerable for other than its gross negligence or
willful misconduct in the performance of any such act.
Section 9.03 Neither Trustee nor Securities Administrator Liable for
Certificates or Mortgage Loans. The recitals contained herein and in the
Certificates (other than the execution of, and the authentication on the
Certificates) shall be taken as the statements of the Depositor or Master
Servicer, as applicable, and neither the Trustee nor the Securities
Administrator assumes responsibility for their correctness. Neither the Trustee
nor the Securities Administrator makes any representations as to the validity or
sufficiency of this Agreement or of the Certificates or any Mortgage Loans save
that the Trustee and the Securities Administrator represent that, assuming due
execution and delivery by the other parties hereto, this Agreement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms,
subject, as to enforcement of remedies, to applicable insolvency, receivership,
moratorium and other laws affecting the rights of creditors generally, and to
general principles of equity and the discretion of the court (regardless of
whether enforcement of such remedies is considered in a proceeding in equity or
at law). Neither the Trustee nor the Securities Administrator shall 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.
Neither the Trustee nor the Securities Administrator shall at any
time have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Mortgage or any Mortgage Loan, or the
perfection and priority of any Mortgage or the maintenance of any such
perfection and priority or for or with respect to the sufficiency of the Trust
or its ability to generate the payments to be distributed to Certificateholders
under this Agreement, including, without limitation: the existence, condition
and ownership of any Mortgaged Property; the existence and enforceability of any
hazard insurance thereon (other than if the Trustee shall assume the duties of
the Master Servicer pursuant to Section 8.05 and thereupon only for the acts or
omissions of the successor Master Servicer); the validity of the assignment of
any Mortgage Loan to the Trustee or of any intervening assignment; the
completeness of any Mortgage Loan; the performance or enforcement of any
Mortgage Loan (other than if the Trustee shall assume the duties of the Master
Servicer pursuant to Section 8.05 and thereupon only for the acts or omissions
of the Trustee as successor Master Servicer); the compliance by the Depositor or
the Master Servicer with any warranty or representation made under this
Agreement or in any related document or the accuracy of any such warranty or
representation; any investment of monies by or at the direction of the Master
Servicer or any loss resulting therefrom, it being understood that the Trustee
and the Securities Administrator shall remain responsible for any Trust property
that it may hold in its individual capacity; the acts or omissions of any of the
Depositor, the Master Servicer (other than if the Trustee shall assume the
duties of the Master Servicer pursuant to Section 8.05 and thereupon only for
the acts or omissions of the Trustee as successor Master Servicer), or any
Mortgagor; any action of the Master Servicer (other than if the Trustee shall
assume the duties of the Master Servicer pursuant to Section 8.05 and thereupon
only for the acts or omissions of the Trustee as successor Master Servicer)
taken in the name of the Securities Administrator; the failure of the Master
Servicer to act or perform any duties required of it as agent of the Trust or
the Securities Administrator hereunder; or any action by the Trustee or the
Securities Administrator taken at the instruction of the Master Servicer (other
than if the Trustee shall assume the duties of the Master Servicer pursuant to
Section 8.05 and thereupon only for the acts or omissions of the Trustee as
successor Master Servicer); provided, however, that the foregoing shall not
relieve the Trustee or the Securities Administrator of its obligation to perform
its duties under this Agreement, including, without limitation, the Trustee's
review of the Mortgage Files pursuant to Section 2.02. The Trustee shall execute
and file any financing or continuation statement in any public office at any
time required to maintain the perfection of any security interest or lien
granted to it hereunder.
Section 9.04 Trustee and Securities Administrator May Own
Certificates. Each of the Trustee and the Securities Administrator in their
individual or any other capacities may become the owner or pledgee of
Certificates with the same rights it would have if it were not Trustee or the
Securities Administrator and may otherwise deal with the Master Servicer or any
of its affiliates with the same right it would have if it were not the Trustee
or the Securities Administrator.
Section 9.05 Eligibility Requirements for Trustee and the Securities
Administrator. The Trustee and the Securities Administrator hereunder shall at
all times be (a) an institution the deposits of which are fully insured by the
FDIC and (b) a corporation or banking association organized and doing business
under the laws of the United States of America or of any State, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority and (c) with respect to every successor trustee or
securities administrator hereunder either an institution (i) the long-term
unsecured debt obligations of which are rated at least "A" by S&P and at least
"A2" by Moody's or (ii) whose serving as Trustee or Securities Administrator
hereunder would not result in the lowering of the ratings originally assigned to
any Class of Certificates. The Trustee shall not be an affiliate of the
Depositor or the Master Servicer. If such corporation or banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 9.05, the combined capital and surplus of such
corporation or banking association shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
The principal office of the Trustee and the Securities Administrator (other than
the initial Trustee or Securities Administrator) shall be in a state with
respect to which an Opinion of Counsel has been delivered to such Trustee at the
time such Trustee or Securities Administrator is appointed Trustee or Securities
Administrator to the effect that the Trust will not be a taxable entity under
the laws of such state. In case at any time the Trustee or the Securities
Administrator shall cease to be eligible in accordance with the provision of
this Section 9.05, the Trustee or the Securities Administrator, as the case may
be, shall resign immediately in the manner and with the effect specified in
Section 9.06.
Section 9.06 Resignation and Removal of Trustee and the Securities
Administrator. The Trustee or the Securities Administrator may at any time
resign and be discharged from the trust hereby created by giving written notice
thereof to the Master Servicer and the Depositor and mailing a copy of such
notice to all Holders of record. The Trustee or the Securities Administrator, as
applicable, shall also mail a copy of such notice of resignation to each Rating
Agency. Upon receiving such notice of resignation, the Depositor shall use its
best efforts to promptly appoint a mutually acceptable successor Trustee or
Securities Administrator, as applicable, by written instrument, in duplicate,
one copy of which instrument shall be delivered to the resigning Trustee or
Securities Administrator, as applicable, and one copy to the successor Trustee
or Securities Administrator, as applicable. If no successor Trustee or
Securities Administrator, as the case may be, shall have been so appointed and
shall have accepted appointment within 30 days after the giving of such notice
of resignation, the resigning Trustee or Securities Administrator may petition
any court of competent jurisdiction for the appointment of a successor Trustee
or Securities Administrator.
If at any time the Trustee or Securities Administrator shall cease
to be eligible in accordance with the provisions of Section 9.05 and shall fail
to resign after written request therefor by the Master Servicer, or if at any
time the Trustee or the Securities Administrator shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or the Securities Administrator or of their respective property shall be
appointed, or any public officer shall take charge or control of the Trustee or
the Securities Administrator or of their respective property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the Master Servicer
may remove the Trustee or the Securities Administrator, as the case may be, and
appoint a successor trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the Trustee or the Securities
Administrator, as applicable, so removed and one copy to the successor.
The Holders of Certificates evidencing not less than 50% of the
Voting Rights may at any time remove the Trustee or the Securities Administrator
by written instrument or instruments delivered to the Master Servicer and the
Trustee or the Securities Administrator, as applicable; the Master Servicer
shall thereupon use their best efforts to appoint a mutually acceptable
successor Trustee or Securities Administrator, as the case may be, in accordance
with this Section 9.06.
Any resignation or removal of the Trustee or the Securities
Administrator and appointment of a successor Trustee pursuant to any of the
provisions of this Section 9.06 shall become effective upon acceptance of
appointment by the successor Trustee or Securities Administrator, as the case
may be, as provided in Section 9.07.
Section 9.07 Successor Trustee or Securities Administrator. Any
successor Trustee or successor Securities Administrator appointed as provided in
Section 9.06 shall execute, acknowledge and deliver to the Master Servicer and
to its predecessor Trustee or Securities Administrator, as applicable, an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee or Securities Administrator shall become
effective and such successor Trustee or Securities Administrator, as the case
may be, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Trustee or Securities
Administrator, as applicable, herein. The predecessor Trustee or Securities
Administrator shall duly assign, transfer, deliver and pay over to the successor
Trustee or Securities Administrator, as the case may be, the whole of the
Mortgage Files and related documents and statements held by it hereunder,
together with all instruments of transfer and assignment or other documents
properly executed as may be reasonably required to effect such transfer and such
of the records or copies thereof maintained by the predecessor Trustee or
Securities Administrator in the administration hereof as may be reasonably
requested by the successor Trustee or Securities Administrator, as the case may
be, and shall thereupon be discharged from all duties and responsibilities under
this Agreement; provided, however, that if the predecessor Trustee or Securities
Administrator has been removed pursuant to the third paragraph of Section 9.06,
all reasonable expenses of the predecessor Trustee or Securities Administrator
incurred in complying with this Section 9.07 shall be reimbursed by the Trust.
No successor Trustee or Securities Administrator shall accept
appointment as provided in this Section 9.07 unless at the time of such
appointment such successor Trustee or Securities Administrator, as the case may
be, shall be eligible under the provisions of Section 9.05.
Upon acceptance of appointment by a successor Trustee or Securities
Administrator, as applicable, as provided in this Section 9.07, the Master
Servicer shall cooperate to mail notice of the succession of such Trustee or
Securities Administrator, as the case may be, hereunder to all Holders of
Certificates at their addresses as shown in the Certificate Register and to each
Rating Agency. If the Master Servicer fails to mail such notice within ten days
after acceptance of appointment by the successor Trustee or Securities
Administrator, the successor Trustee or Securities Administrator, as the case
may be, shall cause such notice to be mailed at the expense of the Master
Servicer.
Section 9.08 Merger or Consolidation of Trustee or Securities
Administrator. Any corporation or banking association into which either the
Trustee or the Securities Administrator may be merged or converted or with which
it may be consolidated, or any corporation or banking association resulting from
any merger, conversion or consolidation to which the Trustee or the Securities
Administrator shall be a party, or any corporation or banking association
succeeding to all or substantially all of the corporate trust business of the
Trustee or the Securities Administrator, shall be the successor of the Trustee
or the Securities Administrator, as applicable, hereunder, if such corporation
or banking association is eligible under the provisions of Section 9.05, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
Section 9.09 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any of the provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any Mortgaged
Property may at the time be located or for any other reason, the Master Servicer
and the Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the Trustee
as co-trustee or separate trustee of all or any part of the Trust Estate, and to
vest in such Person or Persons, in such capacity, such title to the Trust
Estate, or any part thereof, and, subject to the other provision of this Section
9.09, such powers, duties, obligations, rights and trusts as the Master Servicer
and the Trustee may consider necessary or desirable. If the Master Servicer
shall not have joined in such appointment within ten days after the receipt by
it of a request to do so, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor Trustee under Section 9.05 and no
notice to Holders of Certificates of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 9.07. The Securities
Administrator shall be responsible for the fees of any co-trustee or separate
trustee appointed hereunder.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 9.09, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer hereunder), the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Estate or
any portion thereof in any such jurisdiction) shall be exercised and performed
by such separate trustee or co-trustee at the direction of the Trustee. No
trustee hereunder shall be held personally liable by reason of any act or
omission of any other trustee hereunder; provided, however, that no appointment
of a co-trustee or separate trustee hereunder shall relieve the Trustee of its
obligations hereunder.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article IX. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall become incapable of acting, resign or be removed, or shall be adjudged a
bankrupt or insolvent, or a receiver of its property shall be appointed, or any
public officer shall take charge or control of such trustee or co-trustee or of
its property or affairs for the purpose of rehabilitation, conservation or
liquidation, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
Section 9.10 Authenticating Agents. The Securities Administrator may
appoint one or more authenticating agents ("Authenticating Agents") which shall
be authorized to act on behalf of the Securities Administrator in authenticating
or countersigning Certificates. Initially, the Authenticating Agent shall be
Xxxxx Fargo Bank Minnesota, National Association. Wherever reference is made in
this Agreement to the authentication or countersigning of Certificates by the
Securities Administrator or the Securities Administrator's certificate of
authentication or countersigning, such reference shall be deemed to include
authentication or countersigning on behalf of the Securities Administrator by an
Authenticating Agent and a certificate of authentication or countersignature
executed on behalf of the Securities Administrator by an Authenticating Agent.
Each Authenticating Agent must be acceptable to the Master Servicer and must be
a corporation or banking association organized and doing business under the laws
of the United States of America or of any State, having a place of business in
New York, New York, having a combined capital and surplus of at least
$15,000,000, authorized under such laws to do a trust business and subject to
supervision or examination by Federal or State authorities.
Any corporation or banking association into which any Authenticating
Agent may be merged or converted or with which it may be consolidated, or any
corporation or banking association resulting from any merger, conversion or
consolidation to which any Authenticating Agent shall be a party, or any
corporation or banking association succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Securities Administrator or the Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Securities Administrator and to the Master
Servicer. The Securities Administrator may at any time terminate the agency of
any Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Master Servicer. Upon receiving a notice of
resignation or upon such a termination, or in case, at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 9.10, the Securities Administrator may appoint a
successor Authenticating Agent, shall give written notice of such appointment to
the Master Servicer and shall mail notice of such appointment to all
Certificateholders. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent.
Section 9.11 Securities Administrator's Fees and Expenses and
Trustee's Fees and Expenses. The Securities Administrator and the Trustee, as
compensation for their respective services hereunder, shall each be entitled to
a fee in an amount agreed upon between the Master Servicer and either the
Securities Administrator or the Trustee, as applicable, payable by the Master
Servicer out of its own funds and not out of any funds of the Trust Estate. The
Trustee and the Securities Administrator, as the case may be, and any director,
officer, employee or agent of the Trustee or the Securities Administrator, as
the case may be, shall be indemnified and held harmless by the Trust against any
claims, damage, loss, liability or expense (including reasonable attorney's
fees) (a) incurred in connection with or arising from or relating to (i) this
Agreement, (ii) the Certificates, or (iii) the performance of any of the
Trustee's or Securities Administrator's, as the case may be, duties hereunder,
other than any claims, damage, loss, liability or expense incurred by reason of
willful misfeasance, bad faith or gross negligence in the performance of any of
the Trustee's or Securities Administrator's, as the case may be, duties
hereunder, (b) resulting from any tax or information return which was prepared
by, or should have been prepared by, the Master Servicer and (c) arising out of
the transfer of any ERISA-Restricted Certificate or Residual Certificate not in
compliance with ERISA. Without limiting the foregoing, except as otherwise
agreed upon in writing by the Depositor and the Trustee or the Securities
Administrator, and except for any such expense, disbursement or advance as may
arise from the Trustee's or the Securities Administrator's gross negligence, bad
faith or willful misconduct, the Trust shall reimburse the Trustee and the
Securities Administrator for all reasonable expenses, disbursements and advances
incurred or made by the Trustee or the Securities Administrator in accordance
with any of the provisions of this Agreement to the extent permitted by Treasury
Regulations Section 1.860G-1(b)(3)(ii) and (iii); provided, however, that the
Depositor, the Securities Administrator and the Trustee intend to enter into a
separate agreement for custody-related services. Except as otherwise provided
herein, neither the Trustee nor the Securities Administrator shall be entitled
to payment or reimbursement for any routine ongoing expenses incurred by the
Trustee or the Securities Administrator, as applicable, in the ordinary course
of its duties as Trustee or Securities Administrator, Certificate Registrar or
Paying Agent hereunder or for any other expenses. The provisions of this Section
9.11 shall survive the termination of this Agreement or the resignation or
removal of the Trustee or the Securities Administrator, as applicable,
hereunder.
Section 9.12 Appointment of Custodian. The Trustee may at any time
on or after the Closing Date, with the consent of the Depositor and the Master
Servicer, appoint one or more Custodians to hold all or a portion of the
Mortgage Files as agent for the Trustee, by entering into a custodial agreement
in a form acceptable to the Depositor and the Master Servicer. Subject to this
Article IX, the Trustee agrees to comply with the terms of each Custodial
Agreement and to enforce the terms and provisions thereof against the Custodian
for the benefit of the Certificateholders. Each Custodian shall be a depository
institution subject to supervision by federal or state authority, shall have a
combined capital and surplus of at least $10,000,000 and shall be qualified to
do business in the jurisdiction in which it holds any Mortgage File.
Section 9.13 Paying Agents. The Securities Administrator may appoint
one or more Paying Agents (each, a "Paying Agent") which shall be authorized to
act on behalf of the Securities Administrator in making withdrawals from the
Certificate Account and distributions to Certificateholders as provided in
Section 3.09 and Section 5.02. Wherever reference is made in this Agreement to
the withdrawal from the Certificate Account by the Securities Administrator,
such reference shall be deemed to include such a withdrawal on behalf of the
Securities Administrator by a Paying Agent. Initially, the Paying Agent shall be
Xxxxx Fargo Bank Minnesota, National Association. Whenever reference is made in
this Agreement to a distribution by the Securities Administrator or the
furnishing of a statement to Certificateholders by the Securities Administrator,
such reference shall be deemed to include such a distribution or furnishing on
behalf of the Securities Administrator by a Paying Agent. Each Paying Agent
shall provide to the Securities Administrator such information concerning the
Certificate Account as the Securities Administrator shall request from time to
time. Each Paying Agent must be reasonably acceptable to the Master Servicer and
must be a corporation or banking association organized and doing business under
the laws of the United States of America or of any state, having (except in the
case of the Trustee or the Securities Administrator) a principal office and
place of business in New York, New York, having a combined capital and surplus
of at least $15,000,000, authorized under such laws to do a trust business and
subject to supervision or examination by federal or state authorities.
Any corporation into which any Paying Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Paying Agent shall be
a party, or any corporation succeeding to the corporate agency business of any
Paying Agent, shall continue to be the Paying Agent provided that such
corporation after the consummation of such merger, conversion, consolidation or
succession meets the eligibility requirements of this Section 9.13.
Any Paying Agent may at any time resign by giving written notice of
resignation to the Trustee, the Securities Administrator and to the Master
Servicer; provided that the Paying Agent has returned to the Certificate Account
or otherwise accounted, to the reasonable satisfaction of the Securities
Administrator, for all amounts it has withdrawn from the Certificate Account.
The Securities Administrator may, upon prior written approval of the Master
Servicer, at any time terminate the agency of any Paying Agent by giving written
notice of termination to such Paying Agent and to the Master Servicer. Upon
receiving a notice of resignation or upon such a termination, or in case at any
time any Paying Agent shall cease to be eligible in accordance with the
provisions of the first paragraph of this Section 9.13, the Securities
Administrator may appoint, upon prior written approval of the Master Servicer, a
successor Paying Agent, shall give written notice of such appointment to the
Servicer and shall mail notice of such appointment to all Certificateholders.
Any successor Paying Agent upon acceptance of its appointment hereunder shall
become vested with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Paying Agent.
The Securities Administrator shall remain liable for any duties and obligations
assumed by its appointed Paying Agent.
Section 9.14 Limitation of Liability. The Certificates are executed
by the Securities Administrator, not in its individual capacity but solely as
Securities Administrator of the Trust, in the exercise of the powers and
authority conferred and vested in it by this Agreement. Each of the undertakings
and agreements made on the part of the Securities Administrator in the
Certificates is made and intended not as a personal undertaking or agreement by
the Securities Administrator but is made and intended for the purpose of binding
only the Trust.
Section 9.15 Trustee or Securities Administrator May Enforce Claims
Without Possession of Certificates. All rights of action and claims under this
Agreement or the Certificates may be prosecuted and enforced by the Trustee or
the Securities Administrator without the possession of any of the Certificates
or the production thereof in any proceeding relating thereto, and such preceding
instituted by the Trustee or the Securities Administrator shall be brought in
its own name or in its capacity as Trustee or Securities Administrator. Any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursement and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Certificateholders in respect of
which such judgment has been recovered.
Section 9.16 Suits for Enforcement. In case an Event of Default or
other default by the Master Servicer or the Depositor hereunder shall occur and
be continuing, the Trustee, in its discretion, may proceed to protect and
enforce its rights and the rights of the Holders of Certificates under this
Agreement by a suit, action or proceeding in equity or at law or otherwise,
whether for the specific performance of any covenant or agreement contained in
this Agreement or in aid of the execution of any power granted in this Agreement
or for the enforcement of any other legal, equitable or other remedy, as the
Trustee, being advised by counsel, shall deem most effectual to protect and
enforce any of the rights of the Trustee and the Certificateholders.
Section 9.17 Waiver of Bond Requirement. The Trustee shall be
relieved of, and each Certificateholder hereby waives, any requirement of any
jurisdiction in which the Trust, or any part thereof, may be located that the
Trustee post a bond or other surety with any court, agency or body whatsoever.
Section 9.18 Waiver of Inventory, Accounting and Appraisal
Requirement. The Trustee shall be relieved of, and each Certificateholder hereby
waives, any requirement of any jurisdiction in which the Trust, or any part
thereof, may be located that the Trustee file any inventory, accounting or
appraisal of the Trust with any court, agency or body at any time or in any
manner whatsoever.
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase by the Master Servicer or
Liquidation of All Mortgage Loans. Subject to Section 10.02, the respective
obligations and responsibilities of the Depositor, the Master Servicer, the
Securities Administrator and the Trustee created hereby (other than the
obligation of the Securities Administrator to make certain payments to
Certificateholders after the Final Distribution Date and to send certain notices
as hereinafter set forth and the obligations of the Securities Administrator
pursuant to Sections 5.04(b) and 5.05(b)) shall terminate upon the last action
required to be taken by the Securities Administrator on the Final Distribution
Date pursuant to this Article X following the earlier of (a) the purchase by the
Master Servicer of all Mortgage Loans and all REO Property remaining in the
Trust Estate at a price equal to the sum of (i) 100% of the Stated Principal
Balance of each Mortgage Loan (other than any Mortgage Loan as to which REO
Property has been acquired and whose fair market value is included pursuant to
clause (ii) below) and (ii) the fair market value of such REO Property (as
determined by the Master Servicer as of the close of business on the third
Business Day next preceding the date upon which notice of any such termination
is furnished to Certificateholders pursuant to the fourth paragraph of this
Article X), plus any Class Unpaid Interest Shortfall for any Class of
Certificates as well as one month's interest at the related Mortgage Rate on the
Stated Principal Balance of each Mortgage Loan (including any Mortgage Loan as
to which REO Property has been acquired) or (b) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Estate or the disposition of all REO Property.
The Master Servicer may not exercise its purchase option until all
Reimbursement Amounts owed to the Trust have been paid. The Securities
Administrator shall notify the Seller upon notice of the Master Servicer's
intent to exercise its purchase option of any Reimbursement Amount outstanding.
Regardless of the foregoing, in no event shall the Trust created
hereby continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof.
The right of the Master Servicer to repurchase all of the Mortgage
Loans is conditioned upon the aggregate Stated Principal Balance of the Mortgage
Loans as of the Final Distribution Date being less than 1% of the aggregate
Cut-off Date Principal Balance. If such right is exercised, the Securities
Administrator shall, promptly following payment of the purchase price, release
to the Depositor or its designee the Mortgage Files pertaining to the Mortgage
Loans being purchased.
Notice of any termination, specifying the Final Distribution Date
(which shall be a date that would otherwise be a Distribution Date) upon which
the Certificateholders may surrender their Certificates to the Securities
Administrator for payment of the final distribution and for cancellation, shall
be given promptly by the Master Servicer (if exercising its right to purchase
the assets of the Trust) or by the Securities Administrator (in any other case)
by letter to Certificateholders mailed not earlier than the 10th day and not
later than the 15th day of the month next preceding the month of such final
distribution specifying (1) the Final Distribution Date upon which final payment
of the Certificates will be made upon presentation and surrender of Certificates
at the office or agency of the Securities Administrator therein designated, (2)
the amount of any such final payment and (3) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made only
upon presentation and surrender of the Certificates at the office or agency of
the Securities Administrator therein specified. If the Master Servicer is
obligated to give notice to Certificateholders as aforesaid, it shall give such
notice to the Trustee, the Securities Administrator and the Certificate
Registrar at the time such notice is given to Certificateholders. In the event
such notice is given by the Master Servicer, the Master Servicer shall deposit
in the Certificate Account on or before the Final Distribution Date in
immediately available funds an amount equal to the amount necessary to make the
amount, if any, on deposit in the Certificate Account on the Final Distribution
Date equal to the purchase price for the related assets of the Trust computed as
above provided together with a statement as to the amount to be distributed on
each Class of Certificates pursuant to the next succeeding paragraph.
Upon presentation and surrender of the Certificates, the Securities
Administrator shall cause to be distributed to Certificateholders of each Class,
in the order set forth in Section 5.02 hereof, on the Final Distribution Date
and in proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount equal to (I) as to each Class of
Certificates, the Class Certificate Balance thereof plus (a) accrued interest
thereon in the case of an interest bearing Certificate and (b) the applicable
Class A-PO Deferred Amount with respect to the Class A-PO Component, and (II) as
to the Class 1-A-R and Class 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
Securities Administrator 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 Securities Administrator in an Eligible
Account for the benefit of such Certificateholders and the Master Servicer (if
it exercised its right to purchase the assets of the Trust Estate) or the
Securities Administrator (in any other case) shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice all the applicable Certificates shall not have
been surrendered for cancellation, the Securities Administrator may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining 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 Master Servicer exercises its purchase option as provided
in Section 10.01, the Trust shall be terminated in accordance with the following
additional requirements, unless the Securities Administrator and the Trustee
have received an Opinion of Counsel to the effect that the failure of the Trust
to comply with the requirements of this Section 10.02 will not (i) result in the
imposition of taxes on "prohibited transactions" of the Trust as defined in
Section 860F of the Code, or (ii) cause the Trust Estate to fail to qualify as
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 Securities
Administrator shall sell all of the assets of the Trust Estate to the
Master Servicer for cash; and
(ii) the notice given by the Master Servicer or the Securities
Administrator pursuant to Section 10.01 shall provide that such notice
constitutes the adopting of a plan of complete liquidation of the
Upper-Tier REMIC and Lower-Tier REMIC as of the date of such notice (or,
if earlier, the date on which such notice was mailed to
Certificateholders). The Securities Administrator shall also ensure that
such date is specified in the final tax returns of the Upper-Tier REMIC
and Lower-Tier REMIC.
(b) By their acceptance of the Residual Certificate, the Holder
thereof hereby agrees to take such other action in connection with such plan of
complete liquidation as may be reasonably requested by the Depositor, the
Trustee or the Securities Administrator.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment. This Agreement may be amended from time to
time by the Depositor, the Master Servicer, the Securities Administrator and the
Trustee without the consent of any of the Certificateholders, (i) to cure any
ambiguity or mistake, (ii) to correct or supplement any provisions herein or
therein which may be inconsistent with any other provisions of this Agreement,
any amendment to this Agreement or the related Prospectus Supplement, (iii) to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Upper-Tier REMIC and 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 and the Securities Administrator have received an Opinion of Counsel to
the effect that such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action shall not, as evidenced by such Opinion of Counsel,
adversely affect in any material respect the interests of any Certificateholder,
(iv) to change the timing and/or nature of deposits into the Certificate Account
provided that (a) such change shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any Certificateholder
and (b) such change shall not adversely affect the then-current rating of the
Senior Certificates, the Class B-1 Certificates, the Class B-2 Certificates, the
Class B-3 Certificates, the Class B-4 Certificates or the Class B-5 Certificates
as evidenced by a letter from each Rating Agency rating such Certificates to
such effect and (v) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder, provided that the
amendment shall not be deemed to adversely affect in any material respect the
interests of the Certificateholders and no Opinion of Counsel to that effect
shall be required if the Person requesting the amendment obtains a letter from
each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Certificates.
This Agreement may also be amended from time to time by the
Depositor, the Master Servicer, the Securities Administrator and the Trustee,
with the consent of the Holders of Certificates of each Class of Certificates
which is affected by such amendment, evidencing, as to each such Class of
Certificates, Percentage Interests aggregating not less than 66-2/3%, for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
the Holders of such Certificates; provided, however, that no such amendment
shall (A) reduce in any manner the amount of, or delay the timing of,
collections of payments on Mortgage Loans or distributions which are required to
be made on any Certificate without the consent of the Holder of such Certificate
or (B) reduce the aforesaid percentage required to consent to any such
amendment, without the consent of the Holders of all Certificates then
Outstanding.
Prior to the solicitation of consent of Certificateholders in
connection with any such amendment, the party seeking such amendment shall
furnish the Trustee and the Securities Administrator with an Opinion of Counsel
stating whether such amendment would adversely affect the qualification of the
Upper-Tier REMIC or 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
and Lower-Tier REMIC as REMICs.
Promptly after the execution of any such amendment or consent the
Securities Administrator shall furnish written notification of the substance of
or a copy of such amendment to each Certificateholder and to each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable requirements as the Securities Administrator may prescribe.
Section 11.02 Recordation of Agreement; Counterparts. This Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer and at its expense on direction by the
Securities Administrator, who will act at the direction of Holders of
Certificates evidencing not less than 50% of all Voting Rights, but only upon
direction of the Securities Administrator accompanied by an Opinion of Counsel
to the effect that such recordation materially and beneficially affects the
interests of Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 11.03 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust, or the obligations of the parties hereto, nor shall anything
herein set forth, or contained in the terms of the Certificates, be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Securities Administrator a
written notice of default and of the continuance thereof, as provided herein,
and unless also the Holders of Certificates evidencing Percentage Interests
aggregating not less than 25% of each Class of Certificates affected thereby
shall have made written request upon the Securities Administrator to institute
such action, suit or proceeding in its own name as Securities Administrator
hereunder and shall have offered to the Securities Administrator such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Securities Administrator, for 60 days after
its receipt of such notice, request and offer of indemnity, shall have neglected
or refused to institute any such action, suit or proceeding; it being understood
and intended, and being expressly covenanted by each Certificateholder with
every other Certificateholder and the Securities Administrator, that no one or
more Holders of Certificates shall have any right in any manner whatever by
virtue or by availing itself or themselves of any provisions of this Agreement
to affect, disturb or prejudice the rights of the Holders of any other of the
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Agreement, except in the
manner herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 11.03, each and every Certificateholder and the Securities Administrator
shall be entitled to such relief as can be given either at law or in equity.
Section 11.04 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT APPLICATION OF THE
CONFLICTS OF LAWS PROVISIONS THEREOF, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
With respect to any claim arising out of this Agreement, each party
irrevocably submits to the exclusive jurisdiction of the courts of the State of
New York and the United States District Court located in the Borough of
Manhattan in The City of New York, and each party irrevocably waives any
objection which it may have at any time to the laying of venue of any suit,
action or proceeding arising out of or relating hereto brought in any such
courts, irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in any inconvenient forum and further
irrevocably waives the right to object, with respect to such claim, suit, action
or proceeding brought in any such court, that such court does not have
jurisdiction over such party, provided that service of process has been made by
any lawful means.
Section 11.05 Notices. All demands, notices, instructions,
directions, requests and communications required or permitted to be delivered
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by certified mail, return receipt requested,
(provided, however, that notices to the Securities Administrator may be
delivered by facsimile and shall be deemed effective upon receipt) to (a) in the
case of the Depositor, Banc of America Funding Corporation, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: General Counsel and Chief
Financial Officer, (b) in the case of the Master Servicer, Xxxxx Fargo Bank
Minnesota, National Association, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000, Attention: BAFC 2003-2, (c) in the case of the Securities Administrator,
Xxxxx Fargo Bank Minnesota, National Association, X.X. Xxx 00, Xxxxxxxx,
Xxxxxxxx 00000, Attention: BAFC, Series 2003-2, and for overnight delivery
purposes, Xxxxx Fargo Bank Minnesota, National Association, 0000 Xxx Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: BAFC, Series 2003-2, with a copy
to Xxxxx Fargo Bank Minnesota, National Association, Sixth and Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx, 00000, Attention: BAFC, Series 2003-2, (d) in the case
of the Trustee, Wachovia Bank, National Association, 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Structured Finance Services, BAFC
2003-2, (e) in the case of S&P, Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Mortgage
Surveillance Group, and (f) in the case of Moody's, Xxxxx'x Investors Service,
Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Residential Mortgage
Monitoring Group; or, as to each party, at such other address as shall be
designated by such party in a written notice to each other party. Any notice
required or permitted to be mailed to a Certificateholder shall be given by
first class mail, postage prepaid, at the address of such Holder as shown in the
Certificate Register. Any notice to a Certificateholder so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
Section 11.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 11.07 Certificates Nonassessable and Fully Paid. It is the
intention of the Securities Administrator that Certificateholders shall not be
personally liable for obligations of the Trust Estate, that the beneficial
ownership interests represented by the Certificates shall be nonassessable for
any losses or expenses of the Trust Estate or for any reason whatsoever, and
that Certificates upon execution, countersignature and delivery thereof by the
Securities Administrator pursuant to Section 6.01 are and shall be deemed fully
paid.
Section 11.08 Access to List of Certificateholders. The Certificate
Registrar will furnish or cause to be furnished to the Trustee and the
Securities Administrator, within 15 days after the receipt of a request by the
Trustee and/or the Securities Administrator in writing, a list, in such form as
the Trustee and/or the Securities Administrator may reasonably require, of the
names and addresses of the Certificateholders as of the most recent Record Date
for payment of distributions to Certificateholders.
If three or more Certificateholders apply in writing to the
Securities Administrator, and such application states that the applicants desire
to communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and is accompanied by a copy of the
communication which such applicants propose to transmit, then the Securities
Administrator shall, within five Business Days after the receipt of such
application, afford such applicants access during normal business hours to the
most recent list of Certificateholders held by the Securities Administrator. If
such a list is as of a date more than 90 days prior to the date of receipt of
such applicants' request, the Securities Administrator shall promptly request
from the Certificate Registrar a current list as provided above, and shall
afford such applicants access to such list promptly upon receipt.
Every Certificateholder, by receiving and holding such list, agrees
with the Certificate Registrar and the Securities Administrator that neither the
Certificate Registrar nor the Securities Administrator shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Certificateholders hereunder, regardless of the source from
which such information was derived.
Section 11.09 Recharacterization. The parties to this Agreement
intend the conveyance by the Depositor to the Trustee of all of its right, title
and interest in and to the Mortgage Loans pursuant to this Agreement to
constitute a purchase and sale and not a loan. Notwithstanding the foregoing, to
the extent that such conveyance is held not to constitute a sale under
applicable law, it is intended that this Agreement shall constitute a security
agreement under applicable law and that the Depositor shall be deemed to have
granted to the Trustee a first priority security interest in all of the
Depositor's right, title and interest in and to the Mortgage Loans.
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the
Securities Administrator and the Trustee have caused this Agreement to be duly
executed by their respective officers thereunto duly authorized to be hereunto
affixed, all as of the day and year first above written.
BANC OF AMERICA FUNDING CORPORATION,
as Depositor
By:
-----------------------------------------
Name:
Title:
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Master Servicer
By:
-----------------------------------------
Name:
Title:
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Securities Administrator
By:
-----------------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By:
-----------------------------------------
Name:
Title:
STATE OF MARYLAND. )
) ss.:
COUNTY OF COLUMBIA )
)
On the 30th day of July, 2003, before me, a notary public in and for
the State of Maryland, personally appeared _________________, known to me who,
being by me duly sworn, did depose and say that s/he is a _______________ of
Xxxxx Fargo Bank Minnesota, National Association, a national banking
association, one of the parties that executed the foregoing instrument; and that
s/he signed his name thereto by order of the Board of Directors of such
association.
---------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
)
On the 30th day of July, 2003, before me, a notary public in and for
the State of North Carolina, personally appeared ______________, known to me
who, being by me duly sworn, did depose and say that s/he is a _____________ of
Banc of America Funding Corporation, a Delaware corporation, one of the parties
that executed the foregoing instrument; and that she signed her name thereto by
order of the Board of Directors of such corporation.
---------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
)
On the 30th day of July, 2003, before me, a notary public in and for
the State of North Carolina, personally appeared ______________, known to me
who, being by me duly sworn, did depose and say that s/he is a _____________ of
Wachovia Bank, National Association, a national banking association, one of the
parties that executed the foregoing instrument; and that she signed her name
thereto by order of the Board of Directors of such association.
---------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF )
) ss.:
COUNTY OF )
)
On the 30th day of July, 2003, before me, a notary public in and for
the State of ___________, personally appeared ___________________, known to me
who, being by me duly sworn, did depose and say that she is a __________________
of Xxxxx Fargo Bank Minnesota, National Association, a national banking
association, one of the parties that executed the foregoing instrument; and that
s/he signed his name thereto by order of the Board of Directors of such
association.
---------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________.
EXHIBIT A-1-A-1
[FORM OF FACE OF CLASS 1-A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
Class 1-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
Class 1-A-1
evidencing an interest in a Trust consisting primarily of two loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: July 1, 2003
First Distribution Date: August 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $138,606,000.00
Pass-Through Rate: 6.50%
CUSIP No.: 05946X CR 2
ISIN No.: US05946XCR26
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated July 30, 2003 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank Minnesota, National
Association, as master servicer (the "Master Servicer"), Xxxxx Fargo Bank
Minnesota, National Association, as securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-WIO
[FORM OF FACE OF CLASS 1-A-WIO CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
Class 1-A-WIO
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THE AMOUNT
SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
Class 1-A-WIO
evidencing an interest in a Trust consisting primarily of two loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: July 1, 2003
First Distribution Date: August 25, 2003
Initial Notional
Amount of this
Certificate
("Denomination"): $
Initial Notional
Amount of this Class: $100,724,947.00
Pass-Through Rate: Variable
CUSIP No.: 05946X CU 5
ISIN No.: US05946XCU54
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Notional Amount of the Class to which this
Certificate belongs) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Banc of America Funding
Corporation (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement, dated July 30, 2003 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank Minnesota, National
Association, as master servicer (the "Master Servicer"), Xxxxx Fargo Bank
Minnesota, National Association, as securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Class 1-A-WIO Certificate is not entitled to any distributions with
respect to principal on the Mortgage Loans in the Trust.
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Master Servicer, the Securities
Administrator or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This Class 1-A-WIO Certificate represents the right to receive interest at
the Pass-Through Rate for such Class on the Class 1-A-WIO Notional Amount. The
Pass-Through Rate applicable with respect to any Distribution Date is the per
annum rate equal to (i) the weighted average of the Net Mortgage Interest Rates
of the 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) minus (ii) 6.50%.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-R
[FORM OF FACE OF CLASS 1-A-R CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
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 FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
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 two loan groups (the "Mortgage Loans") secured by first liens on
one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: July 1, 2003
First Distribution Date: August 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $50.00
Initial Class Certificate
Balance of this Class: $50.00
Pass-Through Rate: 6.50%
CUSIP No.: 05946X CS 0
ISIN No.: US05946XCS09
THIS CERTIFIES THAT _________ is the registered owner of 100% Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated July 30, 2003 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank Minnesota, National
Association, as master servicer (the "Master Servicer"), Xxxxx Fargo Bank
Minnesota, National Association, as securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
Any distribution of the proceeds of any remaining assets of the
Certificate Account will be made only upon presentment and surrender of this
Class 1-A-R Certificate at the Corporate Trust Office of the Securities
Administrator.
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 Securities Administrator of any change
or impending change in its status as a Permitted Transferee; (ii) no Person
shall acquire an ownership interest in this Class 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 Securities
Administrator shall require delivery to it, in form and substance satisfactory
to it, of an affidavit in the form of Exhibit I to the Pooling and Servicing
Agreement; (iv) notwithstanding the delivery of an affidavit by a proposed
transferee under clause (iii) above, if a Responsible Officer of the Securities
Administrator has actual knowledge that the proposed transferee is not a
Permitted Transferee, no transfer of any Ownership Interest in this 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 Securities Administrator with an effective
Internal Revenue Service Form W-8ECI (or any successor thereto) or (B) the
transferee delivers to both the transferor and the Securities Administrator an
Opinion of Counsel from a nationally-recognized tax counsel to the effect that
such transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of this Class 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 Securities Administrator, based on information provided
to the Securities Administrator by the Master Servicer, will provide to the
Internal Revenue Service, and to the Persons specified in Section 860E(e)(3) and
(6) of the Code, information needed to compute the tax imposed under Section
860E(e) of the Code on transfers of residual interests to disqualified
organizations.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-LR
[FORM OF FACE OF CLASS 1-A-LR CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
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 FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
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 two loan groups (the "Mortgage Loans") secured by first liens on
one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: July 1, 2003
First Distribution Date: August 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $50.00
Initial Class Certificate
Balance of this Class: $50.00
Pass-Through Rate: 6.50%
CUSIP No.: 05946X CT 8
ISIN No.: US05946XCT81
THIS CERTIFIES THAT _________ is the registered owner of 100% Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated July 30, 2003 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank Minnesota, National
Association, as master servicer (the "Master Servicer"), Xxxxx Fargo Bank
Minnesota, National Association, as securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
Any distribution of the proceeds of any remaining assets of the
Certificate Account will be made only upon presentment and surrender of this
Class 1-A-LR Certificate at the Corporate Trust Office of the Securities
Administrator.
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 Securities Administrator of any change
or impending change in its status as a Permitted Transferee; (ii) no Person
shall acquire an ownership interest in this Class 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 Securities
Administrator shall require delivery to it, in form and substance satisfactory
to it, of an affidavit in the form of Exhibit I to the Pooling and Servicing
Agreement; (iv) notwithstanding the delivery of an affidavit by a proposed
transferee under clause (iii) above, if a Responsible Officer of the Securities
Administrator has actual knowledge that the proposed transferee is not a
Permitted Transferee, no transfer of any Ownership Interest in this 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 Securities Administrator with an effective
Internal Revenue Service Form W-8ECI (or any successor thereto) or (B) the
transferee delivers to both the transferor and the Securities Administrator an
Opinion of Counsel from a nationally-recognized tax counsel to the effect that
such transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of this Class 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 Securities Administrator, based on information provided
to the Securities Administrator by the Master Servicer, will provide to the
Internal Revenue Service, and to the Persons specified in Section 860E(e)(3) and
(6) of the Code, information needed to compute the tax imposed under Section
860E(e) of the Code on transfers of residual interests to disqualified
organizations.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-2-A-1
[FORM OF FACE OF CLASS 2-A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
Class 2-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
Class 2-A-1
evidencing an interest in a Trust consisting primarily of two loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: July 1, 2003
First Distribution Date: August 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $52,525,000.00
Pass-Through Rate: 6.00%
CUSIP No.: 05946X CV 3
ISIN No.: US05946XCV38
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated July 30, 2003 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank Minnesota, National
Association, as master servicer (the "Master Servicer"), Xxxxx Fargo Bank
Minnesota, National Association, as securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-2-A-WIO
[FORM OF FACE OF CLASS 2-A-WIO CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
Class 2-A-WIO
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THE AMOUNT
SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
Class 2-A-WIO
evidencing an interest in a Trust consisting primarily of two loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: July 1, 2003
First Distribution Date: August 25, 2003
Initial Notional
Amount of this
Certificate
("Denomination"): $
Initial Notional
Amount of this Class: $39,637,086.00
Pass-Through Rate: Variable
CUSIP No.: 05946X CW 1
ISIN No.: US05946XCW11
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Notional Amount of the Class to which this
Certificate belongs) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Banc of America Funding
Corporation (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement, dated July 30, 2003 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank Minnesota, National
Association, as master servicer (the "Master Servicer"), Xxxxx Fargo Bank
Minnesota, National Association, as securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Class 2-A-WIO Certificate is not entitled to any distributions with
respect to principal on the Mortgage Loans in the Trust.
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Master Servicer, the Securities
Administrator or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This Class 2-A-WIO Certificate represents the right to receive interest at
the Pass-Through Rate for such Class on the Class 2-A-WIO Notional Amount. The
Pass-Through Rate applicable with respect to any Distribution Date is the per
annum rate equal to (i) the weighted average of the Net Mortgage Interest Rates
of the 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) minus (ii) 6.00%.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-PO
[FORM OF FACE OF CLASS A-PO CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
Class A-PO
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, EACH COMPONENT OF THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
Class A-PO
evidencing an interest in a Trust consisting primarily of two loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: July 1, 2003
First Distribution Date: August 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,570,675.00
CUSIP No.: 05946X CX 9
ISIN No.: US05946XCX93
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated July 30, 2003 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank Minnesota, National
Association, as master servicer (the "Master Servicer"), Xxxxx Fargo Bank
Minnesota, National Association, as securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
For the purposes of determining distributions in reduction of Class
Certificate Balance, the Class A-PO Certificates will be deemed to consist of
two 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 Master Servicer, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This Class A-PO Certificate represents the right to receive principal
only.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-B-1
[FORM OF FACE OF CLASS B-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
Class B-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A CERTIFICATES
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
Class B-1
evidencing an interest in a Trust consisting primarily of two loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: July 1, 2003
First Distribution Date: August 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $2,582,000.00
Pass-Through Rate: Variable
CUSIP No.: 05946X CY 7
ISIN No.: US05946XCY76
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated July 30, 2003 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank Minnesota, National
Association, as master servicer (the "Master Servicer"), Xxxxx Fargo Bank
Minnesota, National Association, as securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
For each Distribution Date, interest will accrue at a per annum rate equal
to the weighted average (based on the Group Subordinate Amount for Loan Group 1
and Loan Group 2) of (i) 6.50% per annum for Loan Group 1 and (ii) 6.00% per
annum for Loan Group 2.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-B-2
[FORM OF FACE OF CLASS B-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
Class B-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A CERTIFICATES
AND CLASS B-1 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
Class B-2
evidencing an interest in a Trust consisting primarily of two loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: July 1, 2003
First Distribution Date: August 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,390,000.00
Pass-Through Rate Variable
CUSIP No.: 05946X CZ 4
ISIN No.: US05946XCZ42
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated July 30, 2003 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank Minnesota, National
Association, as master servicer (the "Master Servicer"), Xxxxx Fargo Bank
Minnesota, National Association, as securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
For each Distribution Date, interest will accrue at a per annum rate equal
to the weighted average (based on the Group Subordinate Amount for Loan Group 1
and Loan Group 2) of (i) 6.50% per annum for Loan Group 1 and (ii) 6.00% per
annum for Loan Group 2.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-B-3
[FORM OF FACE OF CLASS B-3 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
Class B-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, CLASS B-1 AND CLASS B-2 CERTIFICATES AS DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
Class B-3
evidencing an interest in a Trust consisting primarily of two loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: July 1, 2003
First Distribution Date: August 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $894,000.00
Pass-Through Rate Variable
CUSIP No.: 05946X DA 8
ISIN No.: US05946XDA81
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated July 30, 2003 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank Minnesota, National
Association, as master servicer (the "Master Servicer"), Xxxxx Fargo Bank
Minnesota, National Association, as securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
For each Distribution Date, interest will accrue at a per annum rate equal
to the weighted average (based on the Group Subordinate Amount for Loan Group 1
and Loan Group 2) of (i) 6.50% per annum for Loan Group 1 and (ii) 6.00% per
annum for Loan Group 2.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-B-4
[FORM OF FACE OF CLASS B-4 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
Class B-4
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, CLASS B-1, CLASS B-2 AND CLASS B-3 CERTIFICATES AS DESCRIBED IN
THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE SECURITIES ADMINISTRATOR EITHER (I) A REPRESENTATION LETTER, IN FORM AND
SUBSTANCE SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT
ACTING ON BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO
EFFECT SUCH PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF
FUNDS USED TO PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL
ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION
CLASS EXEMPTION 95-60 ("PTE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE
IS NO PLAN WITH RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES
AND LIABILITIES FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF SUCH PLAN AND ALL
OTHER PLANS MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN
SECTION V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS 10%
OF THE TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH
AMOUNTS ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60) AT THE DATE OF
ACQUISITION AND ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE
PLANS TO WHICH PTE 95-60 APPLIES, OR (II) AN OPINION OF COUNSEL, IN FORM AND
SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR AND THE MASTER 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 MASTER SERVICER, THE
SECURITIES ADMINISTRATOR OR THE TRUSTEE TO ANY OBLIGATION IN ADDITION TO THOSE
UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT. EACH PERSON WHO ACQUIRES THIS
CERTIFICATE OR ANY INTEREST THEREIN SHALL BE DEEMED TO HAVE MADE THE
REPRESENTATIONS REQUIRED BY THE REPRESENTATION LETTER REFERRED TO IN THE
PRECEDING SENTENCE, UNLESS SUCH PERSON SHALL HAVE PROVIDED SUCH REPRESENTATION
LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE PRECEDING SENTENCE TO THE
TRUSTEE. THE POOLING AND SERVICING AGREEMENT PROVIDES THAT ANY ATTEMPTED OR
PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER RESTRICTIONS WILL BE NULL AND
VOID AND WILL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
Class B-4
evidencing an interest in a Trust consisting primarily of two loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: July 1, 2003
First Distribution Date: August 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $297,000.00
Pass-Through Rate Variable
CUSIP No.: 05946X DB 6
ISIN No.: US05946XDB64
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated July 30, 2003 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank Minnesota, National
Association, as master servicer (the "Master Servicer"), Xxxxx Fargo Bank
Minnesota, National Association, as securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
For each Distribution Date, interest will accrue at a per annum rate equal
to the weighted average (based on the Group Subordinate Amount for Loan Group 1
and Loan Group 2) of (i) 6.50% per annum for Loan Group 1 and (ii) 6.00% per
annum for Loan Group 2.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Securities
Administrator or the Depositor; provided that the foregoing requirements under
clauses (i) and (ii) shall not apply to a transfer of a Private Certificate
between or among the Depositor, the Seller, their affiliates or both. The Holder
of a Private Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Securities Administrator and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-B-5
[FORM OF FACE OF CLASS B-5 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
Class B-5
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, CLASS B-1, CLASS B-2, CLASS B-3 AND CLASS B-4 CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE SECURITIES ADMINISTRATOR EITHER (I) A REPRESENTATION LETTER, IN FORM AND
SUBSTANCE SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT
ACTING ON BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO
EFFECT SUCH PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF
FUNDS USED TO PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL
ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION
CLASS EXEMPTION 95-60 ("PTE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE
IS NO PLAN WITH RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES
AND LIABILITIES FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF SUCH PLAN AND ALL
OTHER PLANS MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN
SECTION V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS 10%
OF THE TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH
AMOUNTS ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60) AT THE DATE OF
ACQUISITION AND ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE
PLANS TO WHICH PTE 95-60 APPLIES, OR (II) AN OPINION OF COUNSEL, IN FORM AND
SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR AND THE MASTER 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 MASTER SERVICER, THE
SECURITIES ADMINISTRATOR OR THE TRUSTEE TO ANY OBLIGATION IN ADDITION TO THOSE
UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT. EACH PERSON WHO ACQUIRES THIS
CERTIFICATE OR ANY INTEREST THEREIN SHALL BE DEEMED TO HAVE MADE THE
REPRESENTATIONS REQUIRED BY THE REPRESENTATION LETTER REFERRED TO IN THE
PRECEDING SENTENCE, UNLESS SUCH PERSON SHALL HAVE PROVIDED SUCH REPRESENTATION
LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE PRECEDING SENTENCE TO THE
TRUSTEE. THE POOLING AND SERVICING AGREEMENT PROVIDES THAT ANY ATTEMPTED OR
PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER RESTRICTIONS WILL BE NULL AND
VOID AND WILL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
Class B-5
evidencing an interest in a Trust consisting primarily of two loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: July 1, 2003
First Distribution Date: August 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $199,000.00
Pass-Through Rate Variable
CUSIP No.: 05946X DC 4
ISIN No.: US05946XDC48
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated July 30, 2003 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank Minnesota, National
Association, as master servicer (the "Master Servicer"), Xxxxx Fargo Bank
Minnesota, National Association, as securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
For each Distribution Date, interest will accrue at a per annum rate equal
to the weighted average (based on the Group Subordinate Amount for Loan Group 1
and Loan Group 2) of (i) 6.50% per annum for Loan Group 1 and (ii) 6.00% per
annum for Loan Group 2.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Securities
Administrator or the Depositor; provided that the foregoing requirements under
clauses (i) and (ii) shall not apply to a transfer of a Private Certificate
between or among the Depositor, the Seller, their affiliates or both. The Holder
of a Private Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Securities Administrator and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-B-6
[FORM OF FACE OF CLASS B-6 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
Class B-6
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, CLASS B-1, CLASS B-2, CLASS B-3, CLASS B-4 AND CLASS B-5
CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE SECURITIES ADMINISTRATOR EITHER (I) A REPRESENTATION LETTER, IN FORM AND
SUBSTANCE SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT
ACTING ON BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO
EFFECT SUCH PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF
FUNDS USED TO PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL
ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION
CLASS EXEMPTION 95-60 ("PTE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE
IS NO PLAN WITH RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES
AND LIABILITIES FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF SUCH PLAN AND ALL
OTHER PLANS MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN
SECTION V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS 10%
OF THE TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH
AMOUNTS ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60) AT THE DATE OF
ACQUISITION AND ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE
PLANS TO WHICH PTE 95-60 APPLIES, OR (II) AN OPINION OF COUNSEL, IN FORM AND
SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR AND THE MASTER 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 MASTER SERVICER, THE
SECURITIES ADMINISTRATOR OR THE TRUSTEE TO ANY OBLIGATION IN ADDITION TO THOSE
UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT. EACH PERSON WHO ACQUIRES THIS
CERTIFICATE OR ANY INTEREST THEREIN SHALL BE DEEMED TO HAVE MADE THE
REPRESENTATIONS REQUIRED BY THE REPRESENTATION LETTER REFERRED TO IN THE
PRECEDING SENTENCE, UNLESS SUCH PERSON SHALL HAVE PROVIDED SUCH REPRESENTATION
LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE PRECEDING SENTENCE TO THE
TRUSTEE. THE POOLING AND SERVICING AGREEMENT PROVIDES THAT ANY ATTEMPTED OR
PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER RESTRICTIONS WILL BE NULL AND
VOID AND WILL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2003-2
Class B-6
evidencing an interest in a Trust consisting primarily of two loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: July 1, 2003
First Distribution Date: August 25, 2003
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $496,814.00
Pass-Through Rate Variable
CUSIP No.: 05946X DD 2
ISIN No.: US05946XDD21
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated July 30, 2003 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank Minnesota, National
Association, as master servicer (the "Master Servicer"), Xxxxx Fargo Bank
Minnesota, National Association, as securities administrator (the "Securities
Administrator"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
For each Distribution Date, interest will accrue at a per annum rate equal
to the weighted average (based on the Group Subordinate Amount for Loan Group 1
and Loan Group 2) of (i) 6.50% per annum for Loan Group 1 and (ii) 6.00% per
annum for Loan Group 2.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Securities
Administrator or the Depositor; provided that the foregoing requirements under
clauses (i) and (ii) shall not apply to a transfer of a Private Certificate
between or among the Depositor, the Seller, their affiliates or both. The Holder
of a Private Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Securities Administrator and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT C
[FORM OF REVERSE OF ALL CERTIFICATES]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as Banc of America Funding Corporation Mortgage Pass-Through
Certificates, of the Series specified on the face hereof (collectively, the
"Certificates"), and representing a beneficial ownership interest in the Trust
created by the Pooling and Servicing Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the Pooling
and Servicing Agreement or, except as expressly provided in the Pooling and
Servicing Agreement, subject to any liability under the Pooling and Servicing
Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to the Pooling and Servicing Agreement for the
interests, rights and limitations of rights, benefits, obligations and duties
evidenced thereby, and the rights, duties and immunities of the Securities
Administrator.
Pursuant to the terms of the Pooling and Servicing Agreement, a
distribution will be made on the 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 Securities Administrator shall distribute
out of the Certificate Account to each Certificateholder of record on the
related Record Date (other than respecting the final distribution) (a) by check
mailed to such Certificateholder entitled to receive a distribution on such
Distribution Date at the address appearing in the Certificate Register, or (b)
upon written request by the Holder of a Regular Certificate, by wire transfer or
by such other means of payment as such Certificateholder and the Securities
Administrator shall agree upon, such Certificateholder's Percentage Interest in
the amount to which the related Class of Certificates is entitled in accordance
with the priorities set forth in Section 5.02 of the Pooling and Servicing
Agreement. The final distribution on each Certificate will be made in like
manner, but only upon presentation and surrender of such Certificate to the
Securities Administrator as contemplated by Section 10.01 of the Pooling and
Servicing Agreement.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Securities Administrator and the rights of the
Certificateholders under the Pooling and Servicing Agreement at any time by the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
with the consent of the Holders of Certificates affected by such amendment
evidencing the requisite Percentage Interest, as provided in the Pooling and
Servicing Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Pooling and Servicing Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register of the Securities Administrator upon surrender of
this Certificate for registration of transfer at the Corporate Trust Office of
the Securities Administrator accompanied by a written instrument of transfer in
form satisfactory to the Securities Administrator and the Certificate Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest, as requested by the Holder surrendering the
same.
No service charge will be made for any such registration of transfer or
exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor, the Master Servicer, the Certificate Registrar, the
Securities Administrator and the Trustee and any agent of the Depositor, the
Master Servicer, the Certificate Registrar, the Securities Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Certificate Registrar, the Trustee, the Securities Administrator or any such
agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
is less than 1% of the aggregate Cut-Off Date Principal Balance, the Master
Servicer will have the option to repurchase, in whole, from the Trust all
remaining Mortgage Loans and all property acquired in respect of such Mortgage
Loans at a purchase price determined as provided in the Pooling and Servicing
Agreement. In the event that no such optional repurchase occurs, the obligations
and responsibilities created by the Pooling and Servicing Agreement will
terminate upon the later of the maturity or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan remaining in the Trust or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Pooling and Servicing Agreement. In no event shall the Trust created by the
Pooling and Servicing Agreement continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
thereof.
Any term used herein that is defined in the Pooling and Servicing
Agreement shall have the meaning assigned in the Pooling and Servicing
Agreement, and nothing herein shall be deemed inconsistent with that meaning.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Securities Administrator
By
----------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the Pooling and Servicing
Agreement referenced herein.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Securities Administrator
By
----------------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
--------------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________ for the
account of ___________________, account number _________________________, or, if
mailed by check, to Applicable statements should be mailed to
_______________________
This information is provided by _____________, the assignee named above,
or , as its agent.
EXHIBIT D-1
LOAN GROUP 1 MORTGAGE LOAN SCHEDULE
[Intentionally Omitted]
EXHIBIT D-2
LOAN GROUP 2 MORTGAGE LOAN SCHEDULE
[Intentionally Omitted]
EXHIBIT E
REQUEST FOR RELEASE OF DOCUMENTS
[date]
To: Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Inventory Control
Re: The Pooling and Servicing Agreement dated July 30, 2003, among Banc
of America Funding Corporation, as Depositor, Xxxxx Fargo Bank
Minnesota, National Association, as Master Servicer, Xxxxx Fargo
Bank Minnesota, National Association, as Securities Administrator,
and Wachovia Bank, National Association, as Trustee
In connection with the administration of the Mortgage Loans held by you,
as Custodian, pursuant to the above-captioned Pooling and Servicing Agreement,
we request the release, and hereby acknowledge receipt, of the Mortgage File for
the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
---------------------
Mortgagor Name, Address & Zip Code:
-----------------------------------
Reason for Requesting Documents (check one)
-------------------------------------------
____ 1. Mortgage Paid in Full
____ 2. Foreclosure
____ 3. Substitution
____ 4. Other Liquidation
____ 5. Nonliquidation Reason: ___________________
By:
--------------------------------------
(authorized signer of Banc of
America Funding Corporation)
Issuer:
-----------------------------------
Address:
----------------------------------
------------------------------------------
Date:
-------------------------------------
Custodian
---------
Wachovia Bank, National Association
Please acknowledge the execution of the above request by your signature and date
below:
---------------------------------- ---------------
Signature Date
Documents returned to Custodian:
----------------------------------- ----------------
Custodian Date
EXHIBIT F
FORM OF CERTIFICATION OF ESTABLISHMENT OF ACCOUNT
[Date]
[_______________] hereby certifies that it has established a [__________]
Account pursuant to Section [________] of the Pooling and Servicing Agreement,
dated July 30, 2003, among Banc of America Funding Corporation, as Depositor,
Xxxxx Fargo Bank Minnesota, National Association, as Master Servicer, Xxxxx
Fargo Bank Minnesota, National Association, as Securities Administrator, and
Wachovia Bank, National Association, as Trustee.
[_______________],
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
EXHIBIT G-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank Minnesota, National Association
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services - BAFC 2003-2
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2003-2, Class ___, having an initial aggregate
Certificate Balance as of July 30, 2003 of $___________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[______________] (the "Transferor") to [______________] (the "Transferee") of
the captioned Certificates (the "Transferred Certificates"), pursuant to Section
6.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated July 30, 2003, among Banc of America Funding Corporation, as
Depositor, Xxxxx Fargo Bank Minnesota, National Association, as Master Servicer,
Xxxxx Fargo Bank Minnesota, National Association, as Securities Administrator,
and Wachovia Bank, National Association, as Trustee. All capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferor hereby certifies, represents
and warrants to you, as Securities Administrator, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any
offer to buy or accept a transfer, pledge or other disposition of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security with
any person in any manner, (d) made any general solicitation with respect
to any Transferred Certificate, any interest in a Transferred Certificate
or any other similar security by means of general advertising or in any
other manner, or (e) taken any other action with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security, which (in the case of any of the acts described in
clauses (a) through (e) hereof) would constitute a distribution of the
Transferred Certificates under the Securities Act of 1933, as amended (the
"1933 Act"), would render the disposition of the Transferred Certificates
a violation of Section 5 of the 1933 Act or any state securities laws, or
would require registration or qualification of the Transferred
Certificates pursuant to the 1933 Act or any state securities laws.
Very truly yours,
------------------------------------------
(Transferor)
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
EXHIBIT G-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank Minnesota, National Association
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services - BAFC 2003-2
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2003-2, Class ___, having an initial aggregate
Certificate Balance as of July 30, 2003 of $_________]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[_______________] (the "Transferor") to [_________________________________] (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 6.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated July 30, 2003, among Banc of America Funding
Corporation, as Depositor, Xxxxx Fargo Bank Minnesota, National Association, as
Master Servicer, Xxxxx Fargo Bank Minnesota, National Association, as Securities
Administrator, and Wachovia Bank, National Association, as Trustee. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Securities
Administrator, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "1933 Act"), and has
completed one of the forms of certification to that effect attached hereto
as Annex 1 and Annex 2. The Transferee is aware that the sale to it is
being made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of another
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a Qualified Institutional Buyer that purchases
for its own account or for the account of another Qualified Institutional
Buyer to whom notice is given that the resale, pledge or transfer is being
made in reliance on Rule 144A, or (b) pursuant to another exemption from
registration under the 1933 Act.
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement and the Trust created pursuant
thereto, (e) any credit enhancement mechanism associated with the
Transferred Certificate, and (f) all related matters, that it has
requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgment below.
Very truly yours,
------------------------------------------
(Transferor)
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
------------------------------------------
(Nominee)
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
ANNEX 1 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [__________________] (the
"Transferor") Xxxxx Fargo Bank Minnesota, National Association, as Securities
Administrator with respect to the mortgage pass-through certificates (the
"Transferred Certificates") described in the Transferee certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended,
because (i) the Transferee owned and/or invested on a discretionary basis
$______________________1 in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
--------
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
Yes No Transferred Certificates only for the
Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
------------------------------------------
Print Name of Transferee
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Date:
-------------------------------------
ANNEX 2 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [_________________] (the
"Transferor") Xxxxx Fargo Bank Minnesota, National Association, as Securities
Administrator, with respect to the mortgage pass-through certificates (the
"Transferred Certificates") described in the Transferee certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A ("Rule 144A") under the Securities Act of 1933, as amended, because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, and (ii) as marked below, the Transferee alone
owned and/or invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Transferee or the Transferee's Family of Investment Companies, the cost
of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis
$____________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $__________________ in securities (other than
the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the
Yes No Transferred Certificates only for the
Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
------------------------------------------
Print Name of Transferee 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, National Association
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services - BAFC 2003-2
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2003-2, Class ___, having an initial aggregate
Certificate Principal Balance as of July 30, 2003 of $_________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[_______________________] (the "Transferor") to
[_________________________________] (the "Transferee") of the captioned
Certificates (the "Transferred Certificates"), pursuant to Section 6.02 of the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
July 30, 2003, among Banc of America Funding Corporation, as Depositor, Xxxxx
Fargo Bank Minnesota, National Association, as Master Servicer, Xxxxx Fargo Bank
Minnesota, National Association, as Securities Administrator, and Wachovia Bank,
National Association, as Trustee. All capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Pooling
and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Securities Administrator, that:
1. Transferee is acquiring the Transferred Certificates for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "1933 Act"), or
any applicable state securities laws.
2. Transferee understands that (a) the Transferred Certificates have not
been and will not be registered under the 1933 Act or registered or qualified
under any applicable state securities laws, (b) neither the Depositor nor the
Securities Administrator is obligated so to register or qualify the Transferred
Certificates and (c) neither the Transferred Certificates nor any security
issued in exchange therefor or in lieu thereof may be resold or transferred
unless such resale or transfer is exempt from the registration requirements of
the 1933 Act and any applicable state securities laws or is made in accordance
with the 1933 Act and laws, in which case (i) unless the transfer is made in
reliance on Rule 144A under the 1933 Act, the Securities Administrator or the
Depositor may require a written Opinion of Counsel (which may be in-house
counsel) acceptable to and in form and substance reasonably satisfactory to the
Securities Administrator and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act and such laws or is being made pursuant to the 1933
Act and such laws, which Opinion of Counsel shall not be an expense of the
Securities Administrator or the Depositor and (ii) the Securities Administrator
shall require a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached to the Pooling and Servicing
Agreement as Exhibit G-1 and a certificate from such Certificateholder's
prospective transferee substantially in the form attached to the Pooling and
Servicing Agreement either as Exhibit G-2A or as Exhibit G-2B, which
certificates shall not be an expense of the Securities Administrator or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both.
3. The Transferee understands that it may not sell or otherwise transfer
the Transferred Certificates, any security issued in exchange therefor or in
lieu thereof or any interest in the foregoing except in compliance with the
provisions of Section 6.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A
TRANSACTION EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT
AND IN ACCORDANCE WITH THE PROVISIONS OF THE POOLING AND SERVICING
AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON
BEHALF OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN
INDIVIDUAL RETIREMENT ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR ANY FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A
"PLAN"), MAY RESULT IN "PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF
ERISA, THE CODE OR SIMILAR LAW. TRANSFER OF THIS CERTIFICATE WILL NOT BE
MADE UNLESS THE TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER
(I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE SATISFACTORY TO THE
SECURITIES ADMINISTRATOR, STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON
BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT
SUCH PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF
FUNDS USED TO PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL
ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), 60 FED. REG. 35925 (JULY
12, 1995)), THERE IS NO BENEFIT PLAN WITH RESPECT TO WHICH THE AMOUNT OF
SUCH GENERAL ACCOUNT'S RESERVES AND LIABILITIES FOR THE CONTRACT(S) HELD
BY OR ON BEHALF OF SUCH BENEFIT PLAN AND ALL OTHER BENEFIT PLANS
MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN
SECTION V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS
10% OF THE TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT
(AS SUCH AMOUNTS ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60) AT THE
DATE OF ACQUISITION AND ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL
ACCOUNT ARE PLANS TO WHICH PTE 95-60 APPLIES, OR (II) AN OPINION OF
COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY TO THE SECURITIES
ADMINISTRATOR AND THE MASTER 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 MASTER SERVICER OR THE SECURITIES
ADMINISTRATOR TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE
POOLING AND SERVICING AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
OR ANY INTEREST THEREIN SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS
REQUIRED BY THE REPRESENTATION LETTER REFERRED TO IN THE PRECEDING
SENTENCE UNLESS SUCH PERSON SHALL HAVE PROVIDED SUCH REPRESENTATION LETTER
OR THE OPINION OF COUNSEL REFERRED TO IN THE PRECEDING SENTENCE TO THE
SECURITIES ADMINISTRATOR AND THE MASTER SERVICER. THE POOLING AND
SERVICING AGREEMENT PROVIDES THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN
VIOLATION OF THESE TRANSFER RESTRICTIONS WILL BE NULL AND VOID AND WILL
VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security with any person in any manner, (d) made any general solicitation by
means of general advertising or in any other manner, or (e) taken any other
action, that (in the case of any of the acts described in clauses (a) through
(e) above) would constitute a distribution of the Transferred Certificates under
the 1933 Act, would render the disposition of the Transferred Certificates a
violation of Section 5 of the 1933 Act or any state securities law or would
require registration or qualification of the Transferred Certificates pursuant
thereto. The Transferee will not act, nor has it authorized nor will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to the Transferred Certificates, any interest in the Transferred
Certificates or any other similar security.
5. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Transferred Certificates and distributions thereon, (c)
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust created pursuant thereto, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501 (a) under the 1933 Act or an entity
in which all the equity owners come within such paragraphs and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Transferred
Certificates; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
------------------------------------------
(Transferee)
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Date:
-------------------------------------
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
------------------------------------------
(Nominee)
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
EXHIBIT H
FORM OF TRANSFEREE REPRESENTATION LETTER
FOR BENEFIT PLAN-RESTRICTED CERTIFICATES
Xxxxx Fargo Bank Minnesota, National Association.
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services - BAFC 2003-2
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2003-2, Class ___, having an initial aggregate
Certificate Principal Balance as of July 30, 2003 of $_________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[_______________________] (the "Transferor") to
[________________________________] (the "Transferee") of the captioned
Certificates (the "Transferred Certificates"), pursuant to Section 6.02 of the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
July 30, 2003, among Banc of America Funding Corporation, as Depositor, Xxxxx
Fargo Bank Minnesota, National Association, as Master Servicer, Xxxxx Fargo Bank
Minnesota, National Association, as Securities Administrator, and Wachovia Bank,
National Association, as Trustee. All capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Pooling
and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to you, as
Securities Administrator, either that:
(a) it is not, and is not acting on behalf of, an employee benefit plan or
arrangement, including an individual retirement account, subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), the Internal
Revenue Code of 1986, as amended (the "Code"), or any federal, state or local
law ("Similar Law") which is similar to ERISA or the Code (collectively, a
"Plan"), and it is not using the assets of any such Plan to effect the purchase
of the Transferred Certificates; or
(b) it is an insurance company and the source of funds used to purchase
the Transferred Certificates is an "insurance company general account" (as
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTE
95-60"), 60 Fed. Reg. 35925 (July 12, 1995)), there is no Plan with respect to
which the amount of such general account's reserves and liabilities for the
contract(s) held by or on behalf of such Plan and all other Plans maintained by
the same employer (or affiliate thereof as defined in Section V(a)(1) of PTE
95-60) or by the same employee organization exceeds 10% of the total of all
reserves and liabilities of such general account (as such amounts are determined
under Section I(a) of PTE 95-60) at the date of acquisition and all Plans that
have an interest in such general account are Plans to which PTE 95-60 applies.
Capitalized terms used in and not otherwise defined herein shall have the
meaning assigned to them in the Pooling and Servicing Agreement.
Very truly yours,
------------------------------------------
(Transferee)
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Date:
-------------------------------------
EXHIBIT I
FORM OF AFFIDAVIT REGARDING TRANSFER OF
RESIDUAL CERTIFICATE PURSUANT TO SECTION 6.02
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2003-2
STATE OF )
) ss:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of _______________________________, the
proposed transferee (the "Transferee") of the Class A-R Certificate (the
"Residual Certificate") issued pursuant to the Pooling and Servicing Agreement,
dated July 30, 2003, (the "Agreement"), relating to the above-referenced Series,
by and among Banc of America Funding Corporation, as depositor (the
"Depositor"), Xxxxx Fargo Bank Minnesota, National Association, as Master
Servicer, Xxxxx Fargo Bank Minnesota, National Association, as Securities
Administrator, and Wachovia Bank, National Association, as Trustee. Capitalized
terms used but not defined herein shall have the meanings ascribed to such terms
in the Agreement. The Transferee has authorized the undersigned to make this
affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the date
of the transfer, a Permitted Transferee. The Transferee is acquiring the
Residual Certificate either (i) for its own account or (ii) as nominee, trustee
or agent for another Person who is a Permitted Transferee and has attached
hereto an affidavit from such Person in substantially the same form as this
affidavit. The Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax will
be imposed on Transfers of the Residual Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will be
imposed on a "pass-through entity" holding the Certificate if at any time during
the taxable year of the pass-through entity a Person that is not a Permitted
Transferee is the record Holder of an interest in such entity. The Transferee
understands that, other than in the case of an "electing large partnership"
under Section 775 of the Code, such tax will not be imposed for any period with
respect to which the record Holder furnishes to the pass-through entity an
affidavit that such record Holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 6.02 of the
Agreement and understands the legal consequences of the acquisition of the
Residual Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 6.02 of the Agreement and the restrictions noted on
the face of the Certificate. The Transferee understands and agrees that any
breach of any of the representations included herein shall render the transfer
to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a transfer affidavit in the form of
this Affidavit from any Person to whom the Transferee attempts to transfer the
Residual Certificate, and in connection with any transfer by a Person for whom
the Transferee is acting as nominee, trustee or agent, and the Transferee will
not transfer the Residual Certificate or cause the Residual Certificate to be
transferred to any Person that the Transferee knows is not a Permitted
Transferee.
7. The Transferee historically has paid its debts as they have become due.
8. The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the Residual
Certificate.
9. The taxpayer identification number of the Transferee's nominee is
___________.
10. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
11. The Transferee is aware that the Residual Certificate may be a
"noneconomic residual interest" within the meaning of Treasury Regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
12. The Transferee will not cause income from the Residual Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other
person.
13. If the Transferee is purchasing the Residual Certificate in a transfer
intended to meet the safe harbor provisions of Treasury Regulations Sections
1.860E-1(c), the Transferee has executed and attached Attachment A hereto.
14. The Transferee is not an employee benefit plan or arrangement,
including an individual retirement account, subject to ERISA, the Code or any
federal, state or local law which is similar to ERISA or the Code, and the
Transferee is not acting on behalf of such a plan or arrangement.
* * *
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer this _____ day of ________________, ____.
------------------------------------------
Print Name of Transferee
By:
---------------------------------------
Name:
Title:
Personally appeared before me the above-named ___________________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the _______________________ of the Transferee, and
acknowledged that he executed the same as his free act and deed and the free act
and deed of the Transferee.
Subscribed and sworn before me this _____ day of________________________,
_____
--------------------------------------
NOTARY PUBLIC
My Commission expires the ____ day of
______________, ____
ATTACHMENT A
to
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4) OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, AND FOR NON-ERISA INVESTORS
Check the appropriate box:
o The consideration paid to the Transferee to acquire the Residual
Certificate equals or exceeds the excess of (a) the present value of the
anticipated tax liabilities over (b) the present value of the anticipated
savings associated with holding such Residual Certificate, in each case
calculated in accordance with U.S. Treasury Regulations Sections
1.860E-1(c)(7) and (8), computing present values using a discount rate
equal to the short-term Federal rate prescribed by Section 1274(d) of the
Code and the compounding period used by the Transferee.
OR
o The transfer of the Residual Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly:
(i) the Transferee is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income
from Residual Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the Transferee's
two fiscal years preceding the year of the transfer, the Transferee
had gross assets for financial reporting purposes (excluding any
obligation of a person related to the Transferee within the meaning
of U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess
of $100 million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Residual Certificate only to
another "eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that
satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii) and
(iii) and Section 1.860E-1(c)(5) of the U.S. Treasury Regulations;
(iv) the Transferee has determined the consideration paid to it to
acquire the Residual Certificate based on reasonable market
assumptions (including, but not limited to, borrowing and investment
rates, prepayment and loss assumptions, expense and reinvestment
assumptions, tax rates and other factors specific to the Transferee)
that it has determined in good faith; and
(v) in the event of any transfer of the Residual Certificate by the
Transferee, the Transferee will require its transferee to complete a
representation in the form of this Attachment A as a condition of
such transferee's purchase of the Residual Certificate.
EXHIBIT J
[Reserved]
EXHIBIT K
FORM OF SPECIAL SERVICING AGREEMENT
This Special Servicing Agreement (the "Agreement") is made and entered
into as of ___________________, between _____________________ (the "Servicer")
and ___________________ (the "Loss Mitigation Advisor").
PRELIMINARY STATEMENT
_________________ (the "Purchaser") is the holder of the entire interest
in Banc of America Funding Corporation; Mortgage Pass-Through Certificates,
Series ______, Class ____ (the "Class B Certificates"). The Class B Certificates
were issued pursuant to a Pooling and Servicing Agreement dated
___________________ among Banc of America Funding Corporation, as depositor (the
"Depositor"), Xxxxx Fargo Bank Minnesota, National Association, as Master
Servicer, Xxxxx Fargo Bank Minnesota, National Association, as Securities
Administrator, and Wachovia Bank, National Association, as Trustee.
The Purchaser has requested the Servicer to engage the Loss Mitigation
Advisor, at the Purchaser's expense, to assist the Servicer with respect to
default management and reporting situations for the benefit of the Purchaser.
In consideration of the mutual agreements herein contained, the receipt
and sufficiency of which are hereby acknowledged, the Servicer hereby engages
the Loss Mitigation Advisor to provide advice in connection with default
management and reporting situations with respect to defaulted loans, including
providing to the Servicer recommendations with respect to foreclosures, the
acceptance of so-called short payoffs, deeds in lieu of or in aid of foreclosure
and deficiency notes, as well as with respect to the sale of REO properties. The
Loss Mitigation Advisor hereby accepts such engagement, and acknowledges that
its fees will be paid by the Purchaser and not the Servicer, and that it will
not look to the Servicer for financial remuneration. It is the intent of the
parties to this Agreement that the services of the Loss Mitigation Advisor are
provided without fee to the Servicer for the benefit of the Purchaser for the
life of the Class B Certificates.
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a day
on which banking institutions in the State of New York are required or
authorized by law or executive order to be closed.
Commencement of Foreclosure: The first official action required under
local law in order to commence foreclosure proceedings or to schedule a
trustee's sale under a deed of trust, including (i) in the case of a mortgage,
any filing or service of process necessary to commence an action to foreclose,
or (ii) in the case of a deed of trust, the posting, publishing, filing or
delivery of a notice of sale.
Delay of Foreclosure: The postponement for more than three Business Days
of the scheduled sale of Mortgaged Property to obtain satisfaction of a Mortgage
Loan.
Loss Mitigation Advisor: ______________.
Purchaser: _______________________, or the holder of record of the Class B
Certificates.
Short Payoff: Liquidation of a Mortgage Loan at less than the full amount
of the outstanding balance of the Mortgage Loan plus advances and costs through
a negotiated settlement with the borrower, which may include a deed-in-lieu of
foreclosure or sale of the property or of the promissory note secured by the
collateral property to a third party, in either case with or without a
contribution toward any resulting deficiency by the borrower.
Section 1.02. Definitions Incorporated by Reference.
All capitalized terms not otherwise defined in this Agreement shall have
the meanings assigned in the Pooling and Servicing Agreements.
ARTICLE II
SPECIAL SERVICING PROCEDURES
Section 2.01. Reports and Notices.
(a) In connection with the performance of its duties under the Pooling and
Servicing Agreement relating to the realization upon defaulted Mortgage Loans,
the Servicer shall use reasonable efforts to provide to the Loss Mitigation
Advisor with the following notices and reports. All such notices and reports may
be sent to the Loss Mitigation Advisor by telecopier, electronic mail, express
mail or regular mail.
(i) The Servicer shall within five Business Days after each
Distribution Date either: (A) provide to the Loss Mitigation Advisor a
written or electronic report, using the same methodology and calculations
as in its standard servicing reports, indicating for the trust fund formed
by the Pooling and Servicing Agreement, the number of Mortgage Loans that
are (1) sixty days delinquent, (2) ninety days or more delinquent, (3) in
foreclosure or (4) real estate owned (REO), and indicating for each such
Mortgage Loan the loan number, whether the loan is in bankruptcy or paying
under the terms of a repayment plan, the reason for default, and
outstanding principal balance; or (B) provide the information detailed in
(A) to a data service provider of the Loss Mitigation Advisor's choice in
an electronic format acceptable to that data service provider. Provision
of the information to a service provider other than that specified by the
Loss Mitigation Advisor is acceptable.
(ii) Prior to a Delay of Foreclosure in connection with any Mortgage
Loan, the Servicer shall provide the Loss Mitigation Advisor with a notice
of such proposed and imminent delay, stating the loan number, the
aggregate amount owing under the Mortgage Loan, and the reason and
justification for delaying foreclosure action. All notices and supporting
documentation pursuant to this subsection may be provided via telecopier,
express mail or electronic mail.
(iii) Prior to accepting any Short Payoff in connection with any
Mortgage Loan, the Servicer shall provide the Loss Mitigation Advisor with
a notice of such proposed and imminent Short Payoff, stating the loan
number, the aggregate amount owing under the Mortgage Loan, and the
justification for accepting the proposed Short Payoff. Such notice may be
sent by telecopier, express mail, electronic mail or regular mail.
(iv) Within five (5) business days of each Distribution Date, the
Servicer shall provide the Loss Mitigation Advisor with a report listing
each loan that has resulted in a realized loss that has been reported to
the trustee. Such report shall specify the loan number, the outstanding
principal balance of the loan upon its liquidation, the realized loss, and
the following components of realized loss: foreclosure costs, advances,
mortgage insurance proceeds, marketing and property rehabilitation costs,
and other costs. Such report may be provided by telecopier, express mail,
regular mail or electronic mail. The Loss Mitigation Advisor shall have at
least ten (10) business days in which to respond with reasonable questions
or requests for additional information regarding the amounts reported as
realized losses, and the Servicer shall within five (5) business days of
receipt of the Loss Mitigation Advisor's questions or additional
information requests provide responses to such questions and requests.
(v) Within five (5) business days of receipt by the Servicer of an
offer to acquire an REO property at an amount that is more than 15% below
the most recent market valuation of that property obtained by the Servicer
(or if no such valuation has been obtained, the appraisal used in
connection with the originating of the related Mortgage Loan), the
Servicer shall notify the Loss Mitigation Advisor of such offer and shall
provide a justification for accepting such offer, if that is the
Servicer's recommendation.
(vi) Within five (5) business days of receipt by the Servicer that a
claim filed for mortgage insurance, or any part thereof, has been rejected
by the mortgage insurance provider, the Servicer shall provide a copy of
the rejected claim with explanations for the item or items rejected to the
Loss Mitigation Advisor.
(vii) Within five (5) business days of providing the trustee with
any notice regarding a mortgage loan substitution, loan modification, or
loan repurchase, the Servicer shall provide the Loss Mitigation Advisor
with a copy of the notice.
(b) If requested by the Loss Mitigation Advisor, the Servicer shall make
its servicing personnel available during its normal business hours to respond to
reasonable inquiries, in writing by facsimile transmission, express mail or
electronic mail, by the Loss Mitigation Advisor in connection with any Mortgage
Loan identified in a report under subsection 2.01 (a)(i), (a)(ii), (a)(iii) or
(a)(iv) which has been given to the Loss Mitigation Advisor; provided that the
Servicer shall only be required to provide information that is readily
accessible to their servicing personnel.
(c) In addition to the foregoing, the Servicer shall provide to the Loss
Mitigation Advisor such information as the Loss Mitigation Advisor may
reasonably request concerning each Mortgage Loan that is at least sixty days
delinquent and each Mortgage Loan which has become real estate owned, provided
that the Servicer shall only be required to provide information that is readily
accessible to its servicing personnel.
(d) With respect to all Mortgage Loans which are serviced at any time by
the Servicer through a subservicer, the Servicer shall be entitled to rely for
all purposes hereunder, including for purposes of fulfilling its reporting
obligations under this Section 2.01, on the accuracy and completeness of any
information provided to it by the applicable subservicer.
Section 2.02. Loss Mitigation Advisor's Recommendations With Respect to
Defaulted Loans.
(a) All parties to this Agreement acknowledge that the Loss Mitigation
Advisor's advice is made in the form of recommendations, and that the Loss
Mitigation Advisor does not have the right to direct the Servicer in performing
its duties under the related 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.
(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,
____________________
____________________
____________________
Attn: ________________
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.
------------------------------------
By:________________________________
Name:______________________________
Title:_____________________________
Loss Mitigation Advisor
-----------------------
By:_________________________________
Name:
Title:
PURCHASER'S ACKNOWLEDGEMENT AND AGREEMENT
Purchaser executes this agreement for the purpose of acknowledging the limited
obligations of the Servicer in respect of the Loss Mitigation Advisor's
recommendation, as described in Section 2.02(a) hereof and confirming to the
Servicer that (i) it shall be solely responsible for the payment of the fees of
the Loss Mitigation Advisor pursuant to the terms of an agreement between
Purchaser and Loss Mitigation Advisor dated _____________, 20__ and (ii)
Purchaser upon transfer of its interest in any of the Class B Certificates or
any part thereof will require its successor to consent to this Special Servicing
Agreement and to pay any of the fees due to the Loss Mitigation Advisor pursuant
to the agreement referenced in clause (i) above.
Purchaser
By:________________________________
Name:______________________________
Title:_______________________________
EXHIBIT L
LIST OF RECORDATION STATES
Florida
Maryland
EXHIBIT M
FORM OF INITIAL CERTIFICATION OF THE TRUSTEE
July 30, 0000
Xxxx xx Xxxxxxx Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxx Fargo Bank Minnesota, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services - BAFC 2003-2
Re: The Pooling and Servicing Agreement, dated July 30, 2003, among Banc
of America Funding Corporation, as Depositor, Xxxxx Fargo Bank
Minnesota, National Association, as Master Servicer, Wachovia Bank,
National Association, as Trustee and Xxxxx Fargo Bank Minnesota,
National Association., as Securities Administrator (BAFC 2003-2)
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as Trustee, hereby certifies that, except as specified in any list
of exceptions attached hereto, it has received the original Mortgage Note
relating to each of the Mortgage Loans listed on the Mortgage Loan Schedule.
The Trustee has made no independent examination of any documents contained
in each Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement in connection with this Initial Certification. The Trustee
makes no representations as to: (i) the validity, legality, sufficiency,
enforceability, recordability or genuineness of any of the documents contained
in each Mortgage File or any of the Mortgage Loans identified in the Mortgage
Loan Schedule or (ii) the collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
WACHOVIA BANK,
NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
EXHIBIT N
FORM OF FINAL CERTIFICATION OF THE TRUSTEE
[__________ __, ____]
Banc of America Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxx Fargo Bank Minnesota, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services - BAFC 2003-2
Re: The Pooling and Servicing Agreement, dated July 30, 2003, among Banc
of America Funding Corporation, as Depositor, Xxxxx Fargo Bank
Minnesota, National Association, as Master Servicer, Xxxxx Fargo
Bank Minnesota, National Association, as Securities Administrator,
and Wachovia Bank, National Association, as Trustee
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as Trustee, hereby certifies that, as to each Mortgage Loan listed
in the Mortgage Loan Schedule, except as may be specified in any list of
exceptions attached hereto, such Mortgage File contains all of the items
required to be delivered pursuant to Section 2.01(b) of the Pooling and
Servicing Agreement.
The Trustee has made no independent examination of any documents contained
in each Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement in connection with this Final Certification. The Trustee
makes no representations as to: (i) the validity, legality, sufficiency,
enforceability, recordability or genuineness of any of the documents contained
in each Mortgage File or any of the Mortgage Loans identified in the Mortgage
Loan Schedule or (ii) the collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
WACHOVIA BANK,
NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
EXHIBIT O
Form of Xxxxxxxx-Xxxxx Certification
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2003-2
I, [________], a [_____________] of Banc of America Funding Corporation,
certify that:
1. I have reviewed the annual report on Form 10-K, and all Monthly Form 8-K's
containing Distribution Date Statements filed in respect of periods
included in the year covered by this annual report, of the Banc of America
Funding 2003-2 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 Master Servicer by each Servicer under the
applicable Servicing Agreement (as defined in the Pooling Agreement") and
to the Securities Administrator by the Master Servicer under the Pooling
and Servicing Agreement, dated July 30, 2003, (the "Pooling Agreement")
among Banc of America Funding Corporation, as depositor, Xxxxx Fargo Bank
Minnesota, National Association, as master servicer, Xxxxx Fargo Bank
Minnesota, National Association, as securities administrator, and Wachovia
Bank, National Association, as trustee, for inclusion in these reports is
included in these reports;
4. Based on my knowledge and upon the annual compliance statement included in
the report and required to be delivered to the Securities Administrator in
accordance with the terms of the Pooling Agreement, and except as
disclosed in the reports, the Servicers have fulfilled their respective
obligations under the Servicing Agreements;
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 Servicing
Agreements 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 parties: Xxxxx
Fargo Bank Minnesota, National Association, ABN AMRO Mortgage Group, Inc.
and SunTrust Mortgage, Inc.
BANC OF AMERICA FUNDING CORPORATION
By:
--------------------------------------
Name:
Title:
EXHIBIT P
Form of Certification to be Provided by the
Securities Administrator to the
Depositor
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2003-2
The Securities Administrator hereby certifies to the Depositor and its
officers, directors and affiliates, and with the knowledge and intent that they
will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the calendar year [___]
and the Monthly Form 8-K's containing the Distribution Date Statements
filed in respect of periods included in the year covered by such annual
report;
2. Based on my knowledge, the distribution information in the Distribution
Date Statements contained in the Monthly Form 8-K's included in the year
covered by the annual report on Form 10-K for the calendar year [___],
taken as a whole, does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not
misleading as of the last day of the period covered by that annual report;
and
3. Based on my knowledge, the distribution or servicing information required
to be provided by the Securities Administrator under the Pooling and
Servicing Agreement, dated July 30, 2003, among Banc of America Funding
Corporation, as depositor, Xxxxx Fargo Bank Minnesota, National
Association, as master servicer, Xxxxx Fargo Bank Minnesota, National
Association, as securities administrator, and Wachovia Bank, National
Association, as trustee, for inclusion in these reports is included in
these reports.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION
as Securities Administrator
By:
--------------------------------------
Name:
Title:
EXHIBIT Q
Form of Certification to be Provided by the Master Servicer to the Depositor
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2003-2
I, [______________], a [___________] of Xxxxx Fargo Bank Minnesota,
National Association, as master servicer (the "Master Servicer") under the
Pooling and Servicing Agreement, dated July 30, 2003, among Banc of America
Funding Corporation, as depositor, Xxxxx Fargo Bank Minnesota, National
Association, as Master Servicer, Xxxxx Fargo Bank Minnesota, National
Association, as Securities Administrator, and Wachovia Bank, National
Association, as Trustee, hereby certify to Banc of America Funding Corporation
(the "Depositor") and each Person, if any, who "controls" the Depositor within
the meaning of the Securities Act of 1933, as amended, and their respective
officers, directors and affiliates, and with the knowledge and intent that they
will rely upon this certification, that:
1. Based on my knowledge, the information relating to the Mortgage
Loans and the master servicing thereof submitted by the Master Servicer to Xxxxx
Fargo Bank Minnesota, National Association (the "Securities Administrator"),
which is used in connection with preparation of the reports on Form 8-K and the
annual report on Form 10-K filed with the Securities and Exchange Commission,
taken as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading as of
the date of this certification;
2. The master servicing information required to be provided to the
Securities Administrator by the Master Servicer under the Pooling and Servicing
Agreement has been provided to the Securities Administrator; and
3. I am responsible for reviewing the activities performed by the
Master Servicer under the Pooling and Servicing Agreement and based upon my
knowledge and the annual compliance review required by the Pooling and Servicing
Agreement, and except as disclosed in the Annual Statement of Compliance
delivered to the Securities Administrator pursuant to the Pooling and Servicing
Agreement, the Master Servicer has, as of the date of this certification
fulfilled its obligations under the Pooling and Servicing Agreement.
Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to them in the Pooling and Servicing Agreement.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Master Servicer
---------------------------------------
Name:
Title:
Dated:
----------------------------------
