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XXXX XX XXXXXXX FUNDING CORPORATION,
as Depositor,
__________________________________,
as Master Servicer and Securities Administrator,
and
__________________________________,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated __________ __, 20__
______________________________________
Mortgage Pass-Through Certificates
Series 20__-__
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms...................................................................2
Section 1.02. Interest Calculations..........................................................26
Section 1.03. Fiscal Year....................................................................26
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans...................................................26
Section 2.02. Acceptance by the Trustee of the Mortgage Loans................................30
Section 2.03. Representations and Warranties of the Master Servicer..........................34
Section 2.04. Representations and Warranties of the Depositor as to the Mortgage
Loans..........................................................................35
Section 2.05. Designation of Interests in the REMIC..........................................36
Section 2.06. Designation of Start-up Day....................................................36
Section 2.07. REMIC Certificate Maturity Date................................................36
Section 2.08. Execution and Delivery of Certificates.........................................36
ARTICLE III
ADMINISTRATION AND MASTER SERVICING OF MORTGAGE LOANS
Section 3.01. Master Servicing of the Mortgage Loans.........................................37
Section 3.02. Monitoring of Servicer.........................................................38
Section 3.03. Fidelity Bond; Errors and Omissions Insurance..................................39
Section 3.04. Access to Certain Documentation................................................40
Section 3.05. Maintenance of Primary Mortgage Insurance Policy; Claims.......................40
Section 3.06. Rights of the Depositor, the Securities Administrator and the Trustee
in Respect of the Master Servicer..............................................41
Section 3.07. Trustee to Act as Master Servicer..............................................41
Section 3.08. Servicer Custodial Account and Escrow Account..................................42
Section 3.09. Collection of Mortgage Loan Payments, Master Servicer Custodial
Account and Distribution Account...............................................42
Section 3.10. Access to Certain Documentation and Information Regarding the
Mortgage Loans.................................................................44
Section 3.11. Permitted Withdrawals from the Distribution Account, the Master
Servicer Custodial Account and the Servicer Custodial Account..................44
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TABLE OF CONTENTS
(continued)
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Section 3.12. Maintenance of Hazard Insurance and Other Insurance............................46
Section 3.13. Presentment of Claims and Collection of Proceeds...............................46
Section 3.14. Enforcement of Due-On-Sale Clauses; Assumption Agreements......................46
Section 3.15. Realization Upon Defaulted Mortgage Loans; REO Property........................47
Section 3.16. Trustee to Cooperate; Release of Mortgage Files................................48
Section 3.17. Documents, Records and Funds in Possession of the Master Servicer
to be Held for the Trustee.....................................................49
Section 3.18. Master Servicer Compensation and Servicer Compensation.........................50
Section 3.19. Annual Statement as to Compliance..............................................50
Section 3.20. Assessments of Servicing Compliance; Registered Public Accounting
Firm Attestation Reports.......................................................51
Section 3.21. Advances.......................................................................52
Section 3.22. Reports to the Securities and Exchange Commission..............................53
ARTICLE IV
MASTER SERVICER'S CERTIFICATE
Section 4.01. Master Servicer's Certificate..................................................59
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS; REMIC ADMINISTRATION
Section 5.01. Distributions..................................................................59
Section 5.02. Priorities of Distributions....................................................59
Section 5.03. Allocation of Losses...........................................................63
Section 5.04. Statements to Certificateholders...............................................64
Section 5.05. Tax Returns and Reports to Certificateholders..................................68
Section 5.06. Tax Matters Person.............................................................68
Section 5.07. Rights of the Tax Matters Person in Respect of the Securities
Administrator..................................................................69
Section 5.08. REMIC Related Covenants........................................................69
ARTICLE VI
THE CERTIFICATES
Section 6.01. The Certificates...............................................................70
Section 6.02. Registration of Transfer and Exchange of Certificates..........................71
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TABLE OF CONTENTS
(continued)
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Section 6.03. Mutilated, Destroyed, Lost or Stolen Certificates..............................75
Section 6.04. Persons Deemed Owners..........................................................75
ARTICLE VII
THE DEPOSITOR AND THE MASTER SERVICER
Section 7.01. Respective Liabilities of the Depositor and the Master Servicer................76
Section 7.02. Merger or Consolidation of the Depositor or the Master Servicer................76
Section 7.03. Limitation on Liability of the Depositor, the Master Servicer and
Others.........................................................................76
Section 7.04. Depositor and Master Servicer Not to Resign....................................77
Section 7.05. Assignment or Delegation of Duties by the Master Servicer......................77
ARTICLE VIII
DEFAULT
Section 8.01. Events of Default..............................................................78
Section 8.02. Remedies of Trustee............................................................79
Section 8.03. Directions by Certificateholders and Duties of Trustee During Event
of Default.....................................................................80
Section 8.04. Action upon Certain Failures of the Master Servicer and upon Event
of Default.....................................................................80
Section 8.05. Trustee to Act; Appointment of Successor.......................................81
Section 8.06. Notification to Certificateholders.............................................82
ARTICLE IX
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 9.01. Duties of Trustee and Securities Administrator.................................82
Section 9.02. Certain Matters Affecting the Trustee and the Securities
Administrator..................................................................84
Section 9.03. Neither Trustee nor Securities Administrator Liable for Certificates
or Mortgage Loans..............................................................85
Section 9.04. Trustee and Securities Administrator May Own Certificates......................86
Section 9.05. Eligibility Requirements for Trustee and the Securities Administrator..........87
Section 9.06. Resignation and Removal of Trustee and the Securities Administrator............87
Section 9.07. Successor Trustee or Securities Administrator..................................88
Section 9.08. Merger or Consolidation of Trustee or Securities Administrator.................89
Section 9.09. Appointment of Co-Trustee or Separate Trustee..................................90
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TABLE OF CONTENTS
(continued)
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Section 9.10. Authenticating Agents..........................................................91
Section 9.11. Securities Administrator's Fees and Expenses and Trustee's Fees and
Expenses.......................................................................92
Section 9.12. Appointment of Custodian.......................................................92
Section 9.13. Paying Agents..................................................................93
Section 9.14. Limitation of Liability........................................................94
Section 9.15. Trustee or Securities Administrator May Enforce Claims Without
Possession of Certificates.....................................................94
Section 9.16. Suits for Enforcement..........................................................94
Section 9.17. Waiver of Bond Requirement.....................................................94
Section 9.18. Waiver of Inventory, Accounting and Appraisal Requirement......................94
ARTICLE X
TERMINATION
Section 10.01. Termination upon Purchase or Liquidation of All Mortgage Loans.................95
Section 10.02. Additional Termination Requirements............................................97
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Amendment......................................................................97
Section 11.02. Recordation of Agreement; Counterparts.........................................99
Section 11.03. Limitation on Rights of Certificateholders.....................................99
Section 11.04. Governing Law.................................................................100
Section 11.05. Notices.......................................................................100
Section 11.06. Severability of Provisions....................................................100
Section 11.07. Certificates Nonassessable and Fully Paid.....................................101
Section 11.08. Access to List of Certificateholders..........................................101
Section 11.09. Recharacterization............................................................101
Section 11.10. Insolvency....................................................................101
Section 11.11. Regulation AB Compliance; Intent of Parties; Reasonableness...................102
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EXHIBITS
Exhibit A-1 Form of Face of Class A-1 Certificate
Exhibit A-R Form of Face of Class A-R 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 I of Transferee's Certificate
Exhibit G-2B Form II of Transferee's Certificate
Exhibit H Form of Transferee Representation Letter
for ERISA Restricted Certificates
Exhibit I Form of Affidavit Regarding Transfer of the Residual Certificate
Exhibit J [Reserved]
Exhibit K [Reserved]
Exhibit L List of Recordation States
Exhibit M Form of Initial Certification
Exhibit N Form of Final Certification
Exhibit O Form of Xxxxxxxx-Xxxxx Certification
Exhibit P Form of Securities Administrator's Certification
Exhibit Q Servicing Criteria
Exhibit R-1 Additional Form 10-D Information
Exhibit R-2 Additional Form 10-K Information
Exhibit R-3 Form 8-K Information
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POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated _______ __, 20__ is
hereby executed by and among BANC OF AMERICA FUNDING CORPORATION, as depositor
(together with its permitted successors and assigns, the "Depositor"),
______________, as master servicer (together with its permitted successors and
assigns, in such capacity, the "Master Servicer") and as securities
administrator (together with its permitted successors and assigns, in such
capacity, the "Securities Administrator"), and ________________ as trustee
(together with its permitted successors and assigns, the "Trustee").
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 a real estate mortgage investment conduit
(a "REMIC"). The Senior Certificates (other than the Class A-R Certificate) and
the Subordinate Certificates are referred to collectively as the "Regular
Certificates" and shall constitute "regular interests" in the REMIC. The Class
A-R Certificate shall be the "residual interest" in the REMIC. The Certificates
will represent the entire beneficial ownership interest in the Trust. The
"latest possible maturity date" for federal income tax purposes of all interests
created hereby will be the REMIC Certificate Maturity Date.
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess thereof
in which the Classes of Certificates shall be issuable (except that one
Certificate of each Class of Certificates may be issued in any amount in excess
of the minimum denomination, but less than the integral multiple in excess of
the minimum):
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Initial Class
Certificate Integral
Balance or Multiples in
Classes Notional Amount Pass-Through Rate Minimum Denomination Excess of Minimum
---------------------------------------------------------------------------------------------------------
Class A-1 $__________ _____% $[1,000] $1
---------------------------------------------------------------------------------------------------------
Class A-PO $__________ (1) $[25,000] $1
---------------------------------------------------------------------------------------------------------
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Class A-R $100.00 $100 N/A
---------------------------------------------------------------------------------------------------------
Class B-1 $__________ _____% $[25,000] $1
---------------------------------------------------------------------------------------------------------
Class B-2 $__________ _____% $[25,000] $1
---------------------------------------------------------------------------------------------------------
Class B-3 $__________ _____% $[25,000] $1
---------------------------------------------------------------------------------------------------------
Class B-4 $__________ _____% $[25,000] $1
---------------------------------------------------------------------------------------------------------
Class B-5 $__________ _____% $[25,000] $1
---------------------------------------------------------------------------------------------------------
Class B-6 $__________ _____% $[25,000] $1
---------------------------------------------------------------------------------------------------------
__________________
(1) The Class A-PO Certificates are Principal Only Certificates and are not
entitled to distributions with respect to 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.
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.
Additional Form 10-D Information: As defined in Section 3.22(b).
Additional Form 10-K Information: As defined in Section 3.22(c).
Additional Servicer: As defined in Section 3.02(g).
Adjusted Pool Amount: With respect to any Distribution Date, the
Cut-off Date Pool Principal Balance of the Mortgage Loans minus the sum of (i)
all amounts in respect of principal received in respect of the Mortgage Loans
(including, without limitation, amounts received as Monthly Payments, Periodic
Advances, Principal Prepayments, Liquidation Proceeds and Substitution
Adjustment Amounts) and distributed to Holders of the Certificates on such
Distribution Date and all prior Distribution Dates and (ii) the principal
portion of all Realized Losses (other than Debt Service Reductions) incurred on
the Mortgage Loans from the Cut-off Date through the end of the month preceding
such Distribution Date.
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Adjusted Pool Amount (Non-PO Portion): With respect to any
Distribution Date, the difference between the Adjusted Pool Amount and the
Adjusted Pool Amount (PO Portion).
Adjusted Pool Amount (PO Portion): With respect to any Distribution
Date, the sum of the amounts, calculated as follows, with respect to all
Outstanding Mortgage Loans: the product of (i) the PO Percentage for each such
Mortgage Loan and (ii) the remainder of (A) the Cut-off Date Principal Balance
of such Mortgage Loan minus (B) the sum of (x) all amounts in respect of
principal received in respect of such Mortgage Loan (including, without
limitation, amounts received as Monthly Payments, Periodic Advances, Principal
Prepayments, Liquidation Proceeds and Substitution Adjustment Amounts) and
distributed to Holders of the Certificates on such Distribution Date and all
prior Distribution Dates and (y) the principal portion of any Realized Loss
(other than a Debt Service Reduction) incurred on such Mortgage Loan from the
Cut-off Date through the end of the month preceding such Distribution Date.
Advance: A Periodic Advance or a Servicing Advance.
Advance Date: As to any Distribution Date, the Business Day
preceding the related Remittance Date.
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, or, in certain cases, an
automated valuation model or tax assessed value and (b) the sales price for such
property, except that, in the case of Mortgage Loans the proceeds of which were
used to refinance an existing mortgage loan, the Appraised Value of the related
Mortgaged Property is the appraised value thereof determined in an appraisal
obtained at the time of refinancing or, in certain cases, an automated valuation
model or tax assessed value, or (ii) the appraised value determined in an
appraisal made at the request of a Mortgagor subsequent to origination in order
to eliminate the Mortgagor's obligation to keep a Primary Mortgage Insurance
Policy in force.
Assignment of Mortgage: An individual assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form, sufficient under
the laws of the jurisdiction wherein the related Mortgaged Property is located
to give record notice of the sale of the Mortgage.
Authenticating Agents: As defined in Section 9.10.
BAFC: Banc of America Funding Corporation.
BANA: Bank of America, National Association, a national banking
association, or its successor in interest.
Book-Entry Certificate: Any Class of Certificates other than the
Physical Certificates.
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Business Day: Any day other than (i) a Saturday or a Sunday or (ii)
a day on which banking institutions in the State of North Carolina, the State of
, each state in which the servicing offices of the Servicer are located, each
state in which the master servicing offices of the Master Servicer are located
or each state in which the Corporate Trust Offices of the Trustee and the
Securities Administrator are located are required or authorized by law or
executive order to be closed.
Calculated Principal Distribution: As defined in Section 5.03(d).
Call Right Holder: ____________, in respect of its right to purchase
the Mortgage Loans as set forth in Section 10.01.
Certificate: Any of the Banc of America Funding Corporation Mortgage
Pass Through Certificates, Series 20___-___ that are issued pursuant to this
Agreement.
Certificate Balance: With respect to any Certificate at any date,
the maximum dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the product of the Percentage
Interest of such Certificate and the Class Certificate Balance of the Class of
Certificates of which such Certificate is a part.
Certificate Custodian: Initially, _________________; thereafter any
other Certificate Custodian acceptable to the Depository and selected by the
Securities Administrator.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of a Book-Entry Certificate. With respect to
any Definitive Certificate, the Certificateholder of such Certificate.
Certificate Register: The register maintained pursuant to Section
6.02.
Certificate Registrar: The registrar appointed pursuant to Section
6.02.
Certificateholder: The Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor, the Master Servicer or any affiliate thereof shall be
deemed not to be outstanding and the Percentage Interest and Voting Rights
evidenced thereby shall not be taken into account in determining whether the
requisite amount of Percentage Interests or Voting Rights, as the case may be,
necessary to effect any such consent has been obtained, unless such entity is
the registered owner of the entire Class of Certificates, provided that 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
Master Servicer unless one of its Responsible Officers has actual knowledge
thereof.
Certification: As defined in Section 3.22.
Class: As to the Certificates, the Class A-1, Class A-PO, Class A-R,
Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6, as the case
may be.
Class B Certificates: The Class B-1, Class B-2, Class B-3, Class
B-4, Class B-5
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and Class B-6 Certificates.
Class Certificate Balance: With respect to any Class and any date of
determination, and subject to Section 5.03(e), the Initial Class Certificate
Balance of such Class minus (A) the sum of (i) all distributions of principal
made with respect thereto (including in the case of a Class of Subordinate
Certificates, any principal otherwise payable to such Class of Subordinate
Certificates used to pay any Class PO Deferred Amounts) and (ii) all reductions
in Class Certificate Balance previously allocated thereto pursuant to Section
5.03(b).
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 PO Deferred Amount: As to any Distribution Date and the Class
A-PO Certificates, the sum of the amounts by which the Certificate Balance of
such Class will be reduced on such Distribution Date or has been reduced on
prior Distribution Dates as a result of Section 5.03(b) less the sum of (a) the
Class PO Recoveries for prior Distribution Dates and (b) the amounts distributed
to such Class pursuant to Section 5.02(a)(iii) on prior Distribution Dates.
Class PO Recovery: As to any Distribution Date, the lesser of (a)
the Class PO Deferred Amounts for such Distribution Date and (b) an amount equal
to the sum, as to each Mortgage Loan as to which there has been a Recovery
received during Prior Period, of the product of (x) the PO Percentage with
respect to such Mortgage Loan and (y) the amount of the Recovery with respect to
such Mortgage Loan.
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: _______ ___ 20___.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest: With respect to any Distribution Date, an
amount equal to the lesser of (a) the aggregate Servicing Fee payable to the
Servicer as of the Due Date in the month preceding the month of such
Distribution Date and (b) the aggregate Prepayment Interest Shortfall with
respect to such Distribution Date.
Cooperative: A private, cooperative housing corporation which owns
or leases land and all or part of a building or buildings, including apartments,
spaces used for commercial purposes and common areas therein and whose board of
directors authorizes, among other things, the sale of Cooperative Stock.
Cooperative Apartment: A dwelling unit in a multi-dwelling building
owned or
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leased by a Cooperative, which unit the Mortgagor has an exclusive right to
occupy pursuant to the terms of a proprietary lease or occupancy agreement.
Cooperative Lease: With respect to a Cooperative Loan, the
proprietary lease or occupancy agreement with respect to the Cooperative
Apartment occupied by the Mortgagor and relating to the related Cooperative
Stock, which lease or agreement confers an exclusive right to the holder of such
Cooperative Stock to occupy such apartment.
Cooperative Loans: Any of the Mortgage Loans made in respect of a
Cooperative Apartment, evidenced by a Mortgage Note and secured by (i) a
Security Agreement, (ii) the related Cooperative Stock Certificate, (iii) an
assignment or mortgage of the Cooperative Lease, (iv) financing statements and
(v) a stock power (or other similar instrument), and ancillary thereto, a
Recognition Agreement, each of which was transferred and assigned to the Trust
pursuant to Section 2.01.
Cooperative Stock: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership instrument
in the related Cooperative.
Cooperative Stock Certificate: With respect to a Cooperative Loan,
the stock certificate or other instrument evidencing the related Cooperative
Stock.
Corporate Trust Office: With respect to the Trustee, the principal
office of the Trustee, which office at the date of the execution of this
instrument is located at _______________, Attention: __________________, or at
such other address as the Trustee may designate from time to time by notice to
the Certificateholders, the Depositor, the Securities Administrator and the
Master Servicer. With respect to the Securities Administrator, the principal
corporate trust office of the Securities Administrator at which at any
particular time its corporate trust business with respect to this Agreement is
conducted, which office at the date of the execution of this instrument is
located at ______________, Attention: ________________, and for certificate
transfer purposes is located at ________________, Attention:
___________________, or at such other address as the Securities Administrator
may designate from time to time by notice to the Certificateholders, the
Depositor, the Trustee and the Master Servicer.
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. None of
the Master Servicer, the Servicer or the Depositor, or any Person directly or
indirectly controlling or controlled by or under common control with any such
Person may be appointed Custodian.
Customary Servicing Procedures: With respect to (i) the Servicer,
procedures (including collection procedures) that the Servicer customarily
employs and exercises in servicing and administering mortgage loans for its own
account and which are in accordance with accepted mortgage servicing practices
of prudent lending institutions servicing mortgage loans of the same type as the
Mortgage Loans in the jurisdictions in which the related Mortgaged Properties
are located and (ii) the Master Servicer, those master servicing
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procedures that constitute customary and usual standards of practice of prudent
mortgage loan master servicers.
Cut-off Date: _______ ___, 20___.
Cut-off Date Pool Principal Balance: The aggregate of the Cut-off
Date Principal Balances of the Mortgage Loans, which is
$__________________________.
Cut-off Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof as of the close of business on the Cut-off Date,
reduced by all installments of principal due on or prior thereto whether or not
paid.
Debt Service Reduction: As to any Mortgage Loan and any
Determination Date, the excess of (i) the Monthly Payment due on the related Due
Date under the terms of such Mortgage Loan over (ii) the amount of the monthly
payment of principal and/or interest required to be paid with respect to such
Due Date by the Mortgagor as established by a court of competent jurisdiction
(pursuant to an order which has become final and nonappealable) as a result of a
proceeding initiated by or against the related Mortgagor under the Bankruptcy
Code, as amended from time to time (11 U.S.C.); provided that no such excess
shall be considered a Debt Service Reduction so long as (a) the Servicer is
pursuing an appeal of the court order giving rise to any such modification and
(b)(1) such Mortgage Loan is not in default with respect to payment due
thereunder in accordance with the terms of such Mortgage Loan as in effect on
the Cut-off Date or (2) Monthly Payments are being advanced by the Servicer, the
Master Servicer or the Trustee, as applicable, in accordance with the terms of
such Mortgage Loan as in effect on the Cut-off Date.
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 or 2.04.
Deficient Valuation: As to any Mortgage Loan and any Determination
Date, the excess of (i) the then outstanding indebtedness under such Mortgage
Loan over (ii) the secured valuation thereof established by a court of competent
jurisdiction (pursuant to an order which has become final and nonappealable) as
a result of a proceeding initiated by or against the related Mortgagor under the
Bankruptcy Code, as amended from time to time (11 U.S.C.), pursuant to which
such Mortgagor retained such Mortgaged Property; provided that no such excess
shall be considered a Deficient Valuation so long as (a) the Servicer is
pursuing an appeal of the court order giving rise to any such modification and
(b)(1) such Mortgage Loan is not in default with respect to payments due
thereunder in accordance with the terms of such Mortgage Loan as in effect on
the Cut-off Date or (2) Monthly Payments are being advanced by the Servicer, the
Master Servicer or the Trustee, as applicable, in accordance with the terms of
such Mortgage Loan as in effect on the Cut-off Date.
Deficient Valuation Mortgage Loan: Any Mortgage Loan that became the
subject of a Deficient Valuation.
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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: With respect to any Distribution Date as defined
in the Servicing Agreement.
Discount Mortgage Loan: Any Mortgage Loan with a Net Mortgage
Interest Rate as of the Cut-off Date that is less than _____% per annum.
Distribution Account: The Eligible Account created and maintained by
the Securities Administrator pursuant to Section 3.09(b) in the name of the
Securities Administrator, on behalf of the Trustee, for the benefit of the
Certificateholders and designated "___________________________, as Securities
Administrator for ______________________, as Trustee, in trust for registered
holders of Banc of America Funding Corporation Mortgage Pass-Through
Certificates, Series 20___-___." Funds in the Distribution Account shall be held
in trust for the Holders of the Certificates for the uses and purposes set forth
in this Agreement.
Distribution Date: The ____ day of each month beginning in _______
___, 20___ (or, if such day is not a Business Day, the next Business Day).
Distribution Date Statement: As defined in Section 3.22(b).
Due Date: As to any Distribution Date and each Mortgage Loan, the
[first] day in the calendar month of such Distribution Date.
Eligible Account: Any of (i) an account or accounts maintained with
a federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the debt obligations of such holding company) have the highest
short-term ratings of each Rating Agency at the time any amounts are held on
deposit therein, or (ii) an account or accounts in a depository institution or
trust company in which such accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered to
the Trustee, the 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
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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 3.08.
Escrow Payments: The amounts constituting taxes, assessments,
Primary Mortgage Insurance Policy premiums, fire and hazard insurance premiums
and other payments as may be required to be escrowed by the Mortgagor with the
mortgagee pursuant to the terms of any Mortgage Note or Mortgage.
Events of Default: As defined in Section 8.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any Liquidation Proceeds of such Mortgage
Loan received in the calendar month in which such Mortgage Loan became a
Liquidated Mortgage Loan, net of any amounts previously reimbursed to the
Servicer, as Nonrecoverable Advance(s) with respect to such Mortgage Loan
pursuant to Section 3.11(a)(iv), exceeds (i) the unpaid principal balance of
such Liquidated Mortgage Loan as of the Due Date in the month in which such
Mortgage Loan became a Liquidated Mortgage Loan plus (ii) accrued interest at
the Mortgage Interest Rate from the Due Date as to which interest was last paid
or for which an Advance was made (and not reimbursed) up to the Due Date
applicable to the Distribution Date immediately following the calendar month
during which such liquidation occurred.
Exchange Act: The Securities Exchange Act of 1934, as amended.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHA: Federal Housing Administration, 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.
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Form 8-K: As defined in Section 3.22(a).
Form 8-K Information: As defined in Section 3.22(e).
Form 10-D: As defined in Section 3.22(a).
Form 10-K: As defined in Section 3.22(a).
Fractional Interest: As defined in Section 5.02(d).
Holder: A Certificateholder.
Independent: When used with respect to any specified Person means
such a Person who (i) is in fact independent of the Depositor, the Trustee, the
Securities Administrator, the Master Servicer and the Servicer, (ii) does not
have any direct financial interest or any material indirect financial interest
in the Depositor, the Trustee, the Securities Administrator, the Master Servicer
or the Servicer or in an affiliate of any of them, and (iii) is not connected
with the Depositor, the Trustee, the Securities Administrator, the Master
Servicer or the Servicer as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions.
Initial Class Certificate Balance: As to each Class of Certificates,
the Class Certificate Balance 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.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) that was liquidated in the
Prior Period and as to which the Servicer has certified (in accordance with the
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.
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Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or otherwise or
amounts received in connection with any condemnation or partial release of a
Mortgaged Property and any other proceeds received in connection with an REO
Property, less the sum of related unreimbursed Servicing Fees and Advances.
Loan-to-Value Ratio: With respect to any Mortgage Loan and any date
of determination, the fraction, expressed as a percentage, the numerator of
which is the outstanding principal balance of the related Mortgage Loan at
origination and the denominator of which is the Appraised Value of the related
Mortgaged Property.
LPMI Policy: A lender-paid Primary Mortgage Insurance Policy.
Master Servicer: ______________________ and its
successors-in-interest and, if a successor master servicer is appointed
hereunder, such successor, as master servicer.
Master Servicer Custodial Account: The account or accounts created
and maintained by the Master Servicer pursuant to Section 3.09 which must be an
Eligible Account.
Master Servicer Custodial Account Reinvestment Income: For each
Distribution Date, all income and gains net of any losses realized since the
preceding Distribution Date from Permitted Investments of funds in the Master
Servicer Custodial Account.
Master Servicer's Certificate: The monthly report required from the
Master Servicer pursuant to Section 4.01.
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
(including attorney's fees) incurred by the Trustee or a successor master
servicer in connection with the transfer of master servicing or servicing from a
predecessor master servicer, including, without limitation, any costs or
expenses associated with the complete transfer of all master servicing data or
servicing data and the completion, correction or manipulation of such master
servicing data or servicing data as may be required by the Trustee or a
successor master servicer to correct any errors or insufficiencies in the master
servicing data or servicing data or otherwise to enable the Trustee or a
successor master servicer to master service or service, as the case may be, the
applicable Mortgage Loans properly and effectively.
MERS: As defined in Section 2.01(b)(iii).
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
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Deficient Valuation that affects the amount of the monthly payment due on such
Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on a Mortgaged Property securing a Mortgage Note or creating a first
lien on a leasehold interest.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan.
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, prior to giving
any effect to any Debt Service Reduction.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated _______ ___, 20___, between BANA, as seller, and the Depositor,
as purchaser.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to
time amended by the Master Servicer to reflect the addition of Substitute
Mortgage Loans and the deletion of Defective Mortgage Loans pursuant to the
provisions of this Agreement) transferred to the Trustee as part of the Trust
Estate and from time to time subject to this Agreement, attached hereto as
Exhibit D, setting forth the following information with respect to each Mortgage
Loan: (i) the Mortgage Loan identifying number; (ii) a code indicating whether
the Mortgaged Property is owner-occupied; (iii) the property type for each
Mortgaged Property; (iv) the original months to maturity or the remaining months
to maturity from the Cut-off Date; (v) the Loan-to-Value Ratio at origination;
(vi) the Mortgage Interest Rate as of the Cut-off Date; (vii) the date on which
the first Monthly Payment was due on the Mortgage Loan, and, if such date is not
the Due Date currently in effect, such Due Date; (viii) the stated maturity
date; (ix) the amount of the Monthly Payment as of the Cut-off Date; (x) the
paid-through date; (xi) the original principal amount of the Mortgage Loan;
(xii) the principal balance of the Mortgage Loan as of the close of business on
the Cut-off Date, after application of payments of principal due on or before
the Cut-off Date, whether or not collected, and after deduction of any payments
collected of scheduled principal due after the Cut-off Date; (xiii) a code
indicating the purpose of the Mortgage Loan; (xiv) a code indicating the
documentation style; (xv) the Appraised Value; and (xvi) the closing date of the
Mortgage Loan. 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
Interest Rate of the Mortgage Loans; and (iv) the weighted average months to
maturity of the Mortgage Loans.
Mortgage Loans: Such of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 as from time to time are held as a part
of the Trust Estate (including any Substitute Mortgage Loans and REO Property),
the Mortgage Loans originally so held being identified in the Mortgage Loan
Schedule.
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Mortgage Note: The originally executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan,
together with all riders thereto and amendments thereof.
Mortgaged Property: The underlying property securing a Mortgage
Loan, which may include Cooperative Stock or residential long-term leases.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Interest Rate: As to any Mortgage Loan and Distribution
Date, such Mortgage Loan's Mortgage Interest Rate thereon on the first day of
the month preceding the month of the related Distribution Date reduced by (i)
the applicable Servicing Fee Rate and Trustee Fee Rate for such Mortgage Loan
and (ii) with respect to any Mortgage Loan covered by an LPMI Policy, the per
annum premium rate for such Mortgage Loan.
Net WAC: As to any Distribution Date, the weighted average of the
Net Mortgage Interest Rates of the Mortgage Loans (based on the Stated Principal
Balances of the Mortgage Loans on the Due Date in the month preceding the month
of such Distribution Date.
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 ____%. As to any Mortgage Loan that is not a Discount Mortgage Loan,
100%.
Non-PO Principal Amount: As to any Distribution Date, the sum of (i)
the sum of the applicable Non-PO Percentage of (a) the principal portion of each
Monthly Payment due on each Mortgage Loan on the related Due Date, (b) the
Stated Principal Balance, as of the date of repurchase, of (I) each Mortgage
Loan that was repurchased by the Servicer pursuant to the Servicing Agreement as
of such Distribution Date, (II) any Mortgage Loan repurchased by the Sponsor
pursuant to the Mortgage Loan Purchase Agreement or a Purchase Obligation as of
such Distribution Date or (III) any Mortgage Loan repurchased by the Depositor
pursuant to a Purchase Obligation, (c) any Substitution Adjustment Amount in
connection with a Defective Mortgage Loan received with respect to such
Distribution Date, (d) any Liquidation Proceeds allocable to recoveries of
principal of Mortgage Loans that are not yet Liquidated Mortgage Loans received
by the Servicer, during the Prior Period relating to such Distribution Date, (e)
with respect to each Mortgage Loan that became a Liquidated Mortgage Loan during
the Prior Period relating to such Distribution Date, the amount of Liquidation
Proceeds (excluding Excess Proceeds) allocable to principal received by the
Servicer, with respect to such Mortgage Loan during such Prior Period, (f) all
Principal Prepayments on the Mortgage Loans received by the Servicer during
Prior Period and (g) any other principal recoveries not described in (a) through
(f) of this definition received on the Mortgage Loans during the Prior Period
relating to such Distribution Date; and (ii) the Non-PO Recovery for such
Distribution Date.
Non-PO Recovery: As to any Distribution Date, the amount of all
Recoveries received during Prior Period less the Class PO Recovery for such
Distribution Date.
Non-Supported Interest Shortfalls: As to any Distribution Date, the
amount, if any, by which the aggregate of Prepayment Interest Shortfalls exceeds
the aggregate
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Compensating Interest for such Distribution Date.
Non-U.S. Person: A Person other than a U.S. Person.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made in respect of a Mortgage Loan which has not been previously
reimbursed and which, in the good faith judgment of the Servicer will not or, in
the case of a proposed Advance, would not be ultimately recoverable from the
related Mortgagor, related Liquidation Proceeds, Insurance Proceeds or other
recoveries in respect of the related Mortgage Loan.
NYCEMA: A New York Consolidation, Extension and Modification
Agreement.
Offered Certificates: The Senior, 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 a REMIC or compliance with the REMIC Provisions must be an opinion of
Independent counsel.
Original Fractional Interest: With respect to each of the following
Classes of Subordinate Certificates, the corresponding percentage described
below, as of the Closing Date:
Class B-1 ____%
Class B-2 ____%
Class B-3 ____%
Class B-4 ____%
Class B-5 ____%
Class B-6 0.00%
Original Subordinate Certificate Balance: $_______________________
for the Subordinate Certificates.
OTS: The Office of Thrift Supervision.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan which
was not the subject of a Principal Prepayment in Full prior to such Due Date,
which did not become
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a Liquidated Mortgage Loan prior to such Due Date and which was not purchased
from the Trust prior to such Due Date pursuant to Sections 2.02 or 2.04.
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: As to each Class of Certificates, the per annum
rate set forth or described in the Preliminary Statement.
Paying Agent: As defined in Section 9.13.
Percentage Interest: As to any Certificate, the percentage obtained
by dividing the initial Certificate Balance of such Certificate by the Initial
Class Certificate Balance of the Class of which such Certificate is a part.
Periodic Advance: Shall have the meaning given to the term "Monthly
Advance" in the Servicing Agreement.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by
the United States, Xxxxxxx Mac, Xxxxxx Xxx or any agency or
instrumentality of the United States when such obligations are backed by
the full faith and credit of the United States; provided that such
obligations of Xxxxxxx Mac or Xxxxxx Xxx shall be limited to senior debt
obligations and mortgage participation certificates other than investments
in mortgage-backed or mortgage participation securities with yields
evidencing extreme sensitivity to the rate of principal payments on the
underlying mortgages, which shall not constitute Permitted Investments
hereunder;
(ii) repurchase agreements on obligations specified in clause (i)
maturing not more than one month from the date of acquisition thereof with
a corporation incorporated under the laws of the United States or any
state thereof rated not lower than "___" by _______ and "___" by _______;
(iii) federal funds, certificates of deposit, demand deposits,
time deposits and bankers' acceptances (which shall each have an original
maturity of not more than 90 days and, in the case of bankers'
acceptances, shall in no event have an original maturity of more than 365
days or a remaining maturity of more than 30 days) denominated in United
States dollars of any U.S. depository institution or trust company
incorporated under the laws of the United States or any state thereof,
rated not lower than "___" by _______ and "___" by _______;
(iv) commercial paper (having original maturities of not more
than 365 days) of any corporation incorporated under the laws of the
United States or any state thereof which is rated not lower than "___" by
_______ and "___" by _______;
(v) investments in money market funds (including funds of the
Securities
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Administrator or its affiliates, or funds for which an affiliate of the
Securities Administrator acts as advisor, as well as funds for which the
Securities Administrator and its affiliates may receive compensation)
rated either "___" by _______ (if rated by _______) and "___" by _______
or otherwise approved in writing by each Rating Agency; and
(vi) other obligations or securities that are acceptable to each
Rating Agency and, as evidenced by an Opinion of Counsel obtained by the
Master Servicer or Securities Administrator, as the case may be, will not
affect the qualification of 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 U.S. 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 A-R, Class B-4, Class B-5 and Class
B-6 Certificates.
Plan: As defined in Section 6.02(e).
PO Percentage: As to any Discount Mortgage Loan, 100% minus the
Non-PO Percentage for such Mortgage Loan. As to any Mortgage Loan that is not a
Discount Mortgage Loan, 0%.
PO Principal Amount: As to any Distribution Date, the sum of (i) the
sum of the applicable PO Percentage of (a) the principal portion of each Monthly
Payment due on each
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Mortgage Loan on the related Due Date, (b) the Stated Principal Balance, as of
the date of repurchase, of (I) each Mortgage Loan that was repurchased by the
Servicer pursuant to the Servicing Agreement as of such Distribution Date, (II)
any Mortgage Loan repurchased by the Sponsor pursuant to the Mortgage Loan
Purchase Agreement or a Purchase Obligation as of such Distribution Date or
(III) any Mortgage Loan repurchased by the Depositor pursuant to a Purchase
Obligation, (c) any Substitution Adjustment Amount in connection with any
Defective Mortgage Loan received with respect to such Distribution Date, (d) any
Liquidation Proceeds allocable to recoveries of principal of Mortgage Loans that
are not yet Liquidated Mortgage Loans received by the Servicer during the Prior
Period relating to such Distribution Date, (e) with respect to each Mortgage
Loan that became a Liquidated Mortgage Loan during the Prior Period relating to
such Distribution Date, the amount of Liquidation Proceeds (excluding Excess
Proceeds) allocable to principal received by the Servicer, with respect to such
Mortgage Loan during such Prior Period with respect to such Mortgage Loan and
(f) any other principal recoveries not described in (a) through (e) of this
definition received on the Mortgage Loans during the Prior Period relating to
such Distribution Date; and (ii) the Class PO Recovery for such Distribution
Date.
Pool Distribution Amount: As to any Distribution Date, the excess of
(a) the sum of (i) the aggregate of (A) the interest portion of any Monthly
Payments on the Mortgage Loans (net of the Servicing Fee) and the principal
portion of any Monthly Payments on the Mortgage Loans due on the Due Date in the
calendar month in which such Distribution Date occurs and which is received
prior to the related Determination Date and (B) all Periodic Advances made by
the Servicer (or the Master Servicer or the Trustee) in respect of the Mortgage
Loans and payments of Compensating Interest in respect of such Distribution Date
deposited to the Master Servicer Custodial Account pursuant to Section
3.09(d)(vi); (ii) all Liquidation Proceeds received on the Mortgage Loans during
the preceding calendar month and deposited to the Master Servicer Custodial
Account pursuant to Section 3.09(d)(iii); (iii) all Principal Prepayments
received on the Mortgage Loans during the calendar month preceding the month of
such Distribution Date and deposited to the Master Servicer Custodial Account
pursuant to Section 3.09(d)(i); (iv) in connection with Defective Mortgage
Loans, the aggregate of the Purchase Prices and Substitution Adjustment Amounts
remitted on the related Remittance Date pursuant to Section 3.09(d)(vii); (v)
any other amounts in the Master Servicer Custodial Account deposited therein
pursuant to Sections 3.09(d)(iv), (v) and (viii) in respect of such Distribution
Date; (vi) any Reimbursement Amount required to be included pursuant to Section
5.02(a) and (vii) any Non-PO Recovery with respect to such Distribution Date;
over (b) any amounts permitted to be withdrawn from the Master Servicer
Custodial Account pursuant to clauses (i) through (viii), inclusive, of Section
3.11(a).
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate Stated Principal Balance of all Mortgage Loans that were Outstanding
Mortgage Loans immediately following the Due Date in the month preceding the
month in which such Distribution Date occurs.
Pool Stated Principal Balance (Non-PO Portion): As to any
Distribution Date, the sum for each Mortgage Loan of the product of (a) the
Non-PO Percentage of such Mortgage Loan and (b) the Stated Principal Balance of
such Mortgage Loan that was an Outstanding Mortgage Loan immediately following
the Due Date in the month preceding the month in
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which such Distribution Date occurs.
Premium Mortgage Loan: Any Mortgage Loan with a Net Mortgage
Interest Rate as of the Cut-off Date that is greater than or equal to ____% per
annum.
Prepayment Interest Shortfall: As to any Distribution Date and each
Mortgage Loan subject to a Principal Prepayment received during the calendar
month preceding such Distribution Date, the amount, if any, by which one month's
interest at the related Mortgage Interest Rate (net of the Servicing Fee Rate)
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 Xxxxxx Xxx or
Xxxxxxx Mac.
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.
Prior Period: With respect to any Distribution Date, the calendar
month immediately preceding the month of such Distribution Date.
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 the Subordinate
Certificates 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%.
Purchase Obligation: An obligation of the Sponsor or the Depositor
to purchase Mortgage Loans under the circumstances and in the manner provided in
Section 2.02 or 2.04.
Purchase Price: With respect to each Mortgage Loan that was a
Defective Mortgage Loan repurchased on any date pursuant to Sections 2.02 or
2.04, an amount equal to (a) in the case of the Sponsor, the sum of (i) the
unpaid principal balance thereof, (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
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which such Mortgage Loan became eligible to be repurchased and (b) in the case
of the Servicer, the sum of (i) the Stated Principal Balance of the Mortgage
Loan, (ii) interest on such Stated Principal Balance at the Mortgage Interest
Rate from the date on which interest has last been paid and distributed through
the last day of the month in which such repurchase takes place and (iii) any
costs and damages incurred by the Trust in connection with any violation by such
repurchased Mortgage Loan of any predatory or abusive lending law, less (x)
amounts received or advanced in respect of such repurchased Mortgage Loan which
are being held in the Servicer Custodial Account for distribution in the month
of repurchase and (y) if the Servicer is servicing such Mortgage Loan under the
Servicing Agreement, the Servicing Fee for such Mortgage Loan.
Rating Agency: Each of ______________ and ______________. 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.
Recognition Agreement: With respect to a Cooperative Loan, the
recognition agreement between the Cooperative and the originator of such
Cooperative Loan.
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.
Recovery: Any amount received on a Mortgage Loan subsequent to such
Mortgage Loan being determined to be a Liquidated Mortgage Loan.
Regular Certificates: As defined in the Preliminary Statement
hereto.
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Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Securities and Exchange Commission in the adopting release
(Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg.
1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Securities and Exchange
Commission, or as may be provided by the Securities and Exchange Commission or
its staff from time to time.
Reportable Event: As defined in Section 3.22(e).
Reimbursement Amount: As defined in Section 2.02.
Relevant Servicing Criteria: The Servicing Criteria applicable to
the various parties, as set forth on Exhibit Q attached hereto. For
clarification purposes, multiple parties can have responsibility for the same
Relevant Servicing Criteria. With respect to a Servicing Function Participant
engaged by the Trustee, the Securities Administrator or the Master Servicer, the
term "Relevant Servicing Criteria" may refer to a portion of the Relevant
Servicing Criteria applicable to the Trustee, the Securities Administrator or
the Master Servicer.
Relief Act: The Servicemembers Civil Relief Act, as it may be
amended from time to time.
Relief Act Reduction: With respect to any Distribution Date, for any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act or comparable state legislation, the amount,
if any, by which (i) interest collectible on such Mortgage Loan for the most
recently ended calendar month is less than (ii) interest accrued pursuant to the
terms of the Mortgage Note on the same principal amount and for the same period
as the interest collectible on such Mortgage Loan for the most recently ended
calendar month.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code. The "REMIC" shall mean the REMIC
constituted by the Trust Estate.
REMIC Certificate Maturity Date: The "latest possible maturity date"
of the Regular Certificates as that term is defined in Section 2.07.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Section 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time, as well as provisions of applicable state laws.
Remittance Date: Shall have the meaning given to the term
"Remittance Date" in the Servicing Agreement.
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REO Proceeds: Proceeds, net of any related expenses of the Servicer
or the Master Servicer, received in respect of any REO Property (including,
without limitation, proceeds from the rental of the related Mortgaged Property)
which are received prior to the final liquidation of such Mortgaged Property.
REO Property: A Mortgaged Property acquired by the Servicer
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.
Request for Release: The Request for Release submitted by the
Servicer to the Trustee or the Custodian on behalf of the Trustee, as the case
may be, 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 the
Servicing Agreement in respect of such Mortgage Loan.
Residual Certificate: The Class A-R Certificate.
Responsible Officer: When used with respect to the Trustee or the
Securities Administrator, any officer of the Corporate Trust Department of the
Trustee or the Securities Administrator, as applicable, including any Senior
Vice President, any Vice President, any Assistant Vice President, any Assistant
Secretary, any Trust Officer or Assistant Trust Officer, or any other officer of
the Trustee or Securities Administrator, as applicable, customarily performing
functions similar to those performed by any of the above designated officers and
having responsibility for the administration of this Agreement.
Restricted Classes: As defined in Section 5.02(d).
Securities Administrator: ___________________, and its
successors-in-interest and, if a successor securities administrator is appointed
hereunder, such successor, as securities administrator.
Security Agreement: With respect to a Cooperative Loan, the
agreement or mortgage creating a security interest in favor of the originator of
the Cooperative Loan in the related Cooperative Stock.
Senior Certificates: The Class A-1, Class A-R and Class A-PO
Certificates.
Senior Credit Support Depletion Date: The date on which the
aggregate Class Certificate Balance of the Subordinate Certificates is reduced
to zero.
Senior Percentage: With respect to any Distribution Date, the
percentage, carried to six places rounded up, obtained by dividing (i) the
aggregate Class Certificate Balance of the Senior Certificates immediately prior
to such Distribution Date, by (ii) the Pool Stated Principal Balance (Non-PO
Portion) for such Distribution Date.
Senior Prepayment Percentage: For any Distribution Date during the
five years
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beginning on the first Distribution Date, 100%. The Senior Prepayment Percentage
for any Distribution Date occurring on or after the fifth anniversary of the
first Distribution Date will, except as provided herein, be as follows: for any
Distribution Date in the first year thereafter, the Senior Percentage plus 70%
of the Subordinate Percentage for such Distribution Date; for any Distribution
Date in the second year thereafter, the Senior Percentage plus 60% of the
Subordinate Percentage for such Distribution Date; for any Distribution Date in
the third year thereafter, the Senior Percentage plus 40% of the Subordinate
Percentage for such Distribution Date; for any Distribution Date in the fourth
year thereafter, the Senior Percentage plus 20% of the Subordinate Percentage
for such Distribution Date; and for any Distribution Date in the fifth or later
years thereafter, the Senior Percentage for such Distribution Date (unless on
any of the foregoing Distribution Dates the Senior Percentage exceeds the
initial Senior Percentage, in which case the Senior Prepayment Percentage for
such Distribution Date will once again equal 100%). Notwithstanding the
foregoing, no decrease in the Senior Prepayment Percentage will occur unless
both of the Senior Step Down Conditions are satisfied.
Senior Principal Distribution Amount: As to any Distribution Date,
the sum of (i) the Senior Percentage of the applicable Non-PO Percentage of the
amounts described in clauses (i) (a) through (d) of the definition of "Non-PO
Principal Amount" for such Distribution Date and (ii) the Senior Prepayment
Percentage of (1) the applicable Non-PO Percentage of the amounts described in
clauses (i)(e) through (g) and (2) the amount described in clause (ii) of the
definition of "Non-PO Principal Amount" for such Distribution Date.
Senior Step Down Conditions: As of any Distribution Date as to which
any decrease in the Senior Prepayment Percentage applies, (i) the outstanding
principal balance of all Mortgage Loans (including, for this purpose, any
Mortgage Loans in foreclosure, any REO Property and any Mortgage Loan for which
the Mortgagor has filed for bankruptcy after the Closing Date) delinquent 60
days or more (averaged over the preceding six month period), as a percentage of
the aggregate Class Certificate Balance of the Subordinate Certificates, 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 for the Subordinate
Certificates set forth below:
Percentage of Original
Distribution Date Occurring Subordinate Certificate Balance
--------------------------- -------------------------------
[month] [year] through [month] [year] [30]%
[month] [year] through [month] [year] [35]%
[month] [year] through [month] [year] [40]%
[month] [year] through [month] [year] [45]%
[month] [year] and thereafter [50]%
Servicer: ___________ or any successor servicer appointed as herein
provided.
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Servicer Custodial Account: The separate account created and
maintained by the Servicer pursuant to the Servicing Agreement.
Servicing Advance: Shall have the meaning given to the term
"Servicing Advances" in the Servicing Agreement.
Servicing Agreement: The sale and servicing agreement dated
_________ ___, _____ between BANA and the Servicer.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, as such may be amended from time to time, which as of
the Closing Date are listed on Exhibit Q hereto.
Servicing Fee: As defined in the Servicing Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan, as defined
in the Servicing Agreement.
Servicing Function Participant: Any affiliate or third party vendor
engaged by the Master Servicer, the Securities Administrator or the Trustee that
is participating in the servicing function with respect to the Mortgage Loans
within the meaning of Item 1122 of Regulation AB.
Servicing Officer: As defined in the Servicing Agreement.
Servicing Transfer Costs: All reasonable costs and expenses of the
Master Servicer or the Trustee, as applicable, related to any termination of the
Servicer, appointment of a successor Servicer or the transfer and assumption of
servicing by the Master Servicer or the Trustee, as applicable, with respect to
any Servicing Agreement (including, without limitation, (i) all legal costs and
expenses and all due diligence costs and expenses associated with an evaluation
of the potential termination of the Servicer as a result of an event of default
by such Servicer and (ii) any costs or expenses associated with the complete
transfer of all servicing data and the completion, correction or manipulation of
such servicing data as may be required by the Master Servicer or the Trustee, as
applicable, to correct any errors or insufficiencies in the servicing data or
otherwise to enable the Master Servicer or the Trustee, as applicable, to
service the Mortgage Loans properly and effectively).
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Shift Percentage: As to any Distribution Date, the percentage
indicated below:
Distribution Date Occurring In Shift Percentage
------------------------------ ----------------
[month] [year] through [month] [year] [0]%
[month] [year] through [month] [year] [30]%
[month] [year] through [month] [year] [40]%
[month] [year] through [month] [year] [60]%
[month] [year] through [month] [year] [80]%
[month] [year] and thereafter [100]%
Similar Law: As defined in Section 6.02(e).
Sponsor: Bank of America, National Association, a national banking
association, or its successor in interest, as seller of the Mortgage Loans under
the Mortgage Loan Purchase Agreement.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such date as specified in
the amortization schedule at the time relating thereto (before any adjustment to
such amortization schedule by reason of any moratorium or similar waiver or
grace period) after giving effect to any previous partial Principal Prepayments
and Liquidation Proceeds allocable to principal (other than with respect to any
Liquidated Mortgage Loan) and to the payment of principal due on such Due Date
and irrespective of any delinquency in payment by the related Mortgagor, and
after giving effect to any Deficient Valuation.
Subordinate Certificates: The Class B Certificates.
Subordinate Percentage: As of any Distribution Date, 100% minus the
Senior Percentage for such Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date, 100%
minus the Senior Prepayment Percentage for such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the sum of (i) the Subordinate Percentage
of the applicable Non-PO Percentage of the amounts described in clauses (i)(a)
through (d) of the definition of "Non-PO Principal Amount" for such Distribution
Date and (ii) the Subordinate Prepayment Percentage of the applicable Non-PO
Percentage of the amounts described in clauses (i)(e) through (g) and (2) the
amount described in clause (ii) of the definition of "Non-PO Principal Amount"
for such Distribution Date.
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
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substitution, not in excess of the Stated Principal Balance of the Defective
Mortgage Loan; (ii) have a Net Mortgage Interest Rate not less than and not more
than 2% greater than that of the Defective Mortgage Loan; (iii) be of the same
type as the Defective Mortgage Loan, (iv) have a Loan-to-Value Ratio not higher
than that of the Defective Mortgage Loan, (v) have a FICO score not less than
that of the Defective Mortgage Loan, (vi) have a credit grade not lower in
quality than that of the Defective Mortgage Loan, (vii) have a remaining term to
maturity not greater than (and not more than one year less than) that of the
Defective Mortgage Loan; (viii) have the same lien priority as the Defective
Mortgage Loan; and (ix) comply with each Mortgage Loan representation and
warranty set forth in the Mortgage Loan Purchase Agreement, the Servicing
Agreement and this Agreement. More than one Substitute Mortgage Loan may be
substituted for a Defective Mortgage Loan if such Substitute Mortgage Loans meet
the foregoing attributes in the aggregate.
Substitution Adjustment Amount: As defined in Section 2.02.
Tax Matters Person: Any person designated as "tax matters person" in
accordance with Section 5.06 and the manner provided under Treasury Regulation
ss. 1.860F-4(d) and Treasury Regulation ss. 301.6231(a)(7)-1.
Treasury Regulations: The final and temporary regulations
promulgated under the Code by the U.S. Department of the Treasury.
Trust: The trust created by this Agreement, which shall be named the
"Banc of America Funding 20__-__Trust."
Trust Estate: The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered hereunder,
with respect to a portion of which a REMIC election is to be made, such entire
Trust Estate consisting of: (i) such Mortgage Loans as from time to time are
subject to this Agreement, together with the Mortgage Files relating thereto,
and together with all collections thereon and proceeds thereof, (ii) any REO
Property, together with all collections thereon and proceeds thereof, (iii) the
Trustee's rights with respect to the Mortgage Loans under all insurance policies
required to be maintained pursuant to this Agreement and any proceeds thereof,
(iv) the Depositor's rights under the Servicing Agreement and the Mortgage Loan
Purchase Agreement (including any security interest created thereby) and (v) the
Servicer Custodial Account, the Master Servicer Custodial Account and the
Distribution Account such assets that are deposited therein from time to time
and any investments thereof, together with any and all income, proceeds and
payments with respect thereto.
Trustee: _____________, and its successors-in-interest and, if a
successor trustee is appointed hereunder, such successor, as trustee.
Trustee Fee: With respect to each Mortgage Loan, a monthly fee paid
to the Trustee out of interest collections received from the related Mortgage
Loan calculated at the Trustee Fee Rate on the Stated Principal Balance of the
Mortgage Loan as of the Due Date in the month preceding the month of the related
Distribution Date.
Trustee Fee Rate: A per annum rate equal to ___%.
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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).
VA: The Department of Veterans Affairs, formerly known as the
Veterans Administration, or any successor thereto.
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 Holder of
the Residual Certificate and (b) 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.]
Section 1.03. Fiscal Year. The fiscal year of the Trust will be the
calendar year.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee on behalf of the Trust
for the benefit of the Certificateholders, without recourse, all the right,
title and interest of the Depositor in and to the Mortgage Loans and the related
Mortgage Files, including all interest and principal received on or with respect
to the Mortgage Loans (other than payments of principal and interest due and
payable on the Mortgage Loans on or before the Cut-off Date) and the Depositor's
rights under the Mortgage Loan Purchase Agreement, including the rights of the
Depositor as assignee of the Sponsor with respect to the Sponsor's rights under
the Servicing Agreement. The foregoing sale, transfer, assignment and set over
does not and is not intended to result in a creation of an assumption by the
Trustee of any obligation of the Depositor or any other Person in connection
with the Mortgage Loans or any agreement or instrument relating thereto, except
as specifically set forth herein. It is agreed and understood by the parties
hereto that it is not intended that any
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mortgage loan be included in the Trust that is a "High-Cost Home Loan" as
defined in any of (i) the New Jersey Home Ownership Act effective November 27,
2003, (ii) the New Mexico Home Loan Protection Act effective January 1, 2004,
(iii) the Massachusetts Predatory Home Loan Practices Act effective November 7,
2004 or (iv) the Indiana Home Loan Practices Act, effective January 1, 2005.
(b) In connection with such transfer and assignment, the
Depositor shall deliver or cause to be delivered to the Trustee, or a Custodian
on behalf of the Trustee, for the benefit of the Certificateholders, the
following documents or instruments with respect to each Mortgage Loan so
assigned:
(i) the original Mortgage Note, endorsed by manual or facsimile
signature in the following form: "Pay to the order of ___________________,
as trustee for the holders of Banc of America Funding Corporation Mortgage
Pass-Through Certificates, Series 20___-___, without recourse," with all
necessary intervening endorsements showing a complete chain of endorsement
from the originator to the Trustee (each such endorsement being sufficient
to transfer all right, title and interest of the party so endorsing, as
noteholder or assignee thereof, in and to that Mortgage Note) and, in the
case of any Mortgage Loan originated in the State of New York documented
by a NYCEMA, the NYCEMA, the new Mortgage Note, if applicable, the
consolidated Mortgage Note and the consolidated Mortgage;
(ii) except as provided below, the original recorded Mortgage
with evidence of a recording thereon, or if any such Mortgage has not been
returned from the applicable recording office or has been lost, or if such
public recording office retains the original recorded Mortgage, a copy of
such Mortgage certified by the applicable Servicer (which may be part of a
blanket certification) as being a true and correct copy of the Mortgage;
(iii) subject to the provisos at the end of this paragraph, a duly
executed Assignment of Mortgage to "_____________________, as trustee for
the holders of Banc of America Funding Corporation Mortgage Pass-Through
Certificates, Series 20___-___" (which may be included in a blanket
assignment or assignments), together with, except as provided below,
originals of all interim recorded assignments of such mortgage or a copy
of such interim assignment certified by the Servicer (which may be part of
a blanket certification) as being a true and complete copy of the original
recorded intervening assignments of Mortgage (each such assignment, when
duly and validly completed, to be in recordable form and sufficient to
effect the assignment of and transfer to the assignee thereof, under the
Mortgage to which the assignment relates); provided that, if the related
Mortgage has not been returned from the applicable public recording
office, such Assignment of Mortgage may exclude the information to be
provided by the recording office; and provided, further, if the related
Mortgage has been recorded in the name of Mortgage Electronic Registration
Systems, Inc. ("MERS") or its designee, no Assignment of Mortgage in favor
of the Trustee will be required to be prepared or delivered and instead,
the Master Servicer shall enforce the obligations of the 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
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of the system of recording transfers of beneficial ownership of mortgages
maintained by MERS;
(iv) the originals of all assumption, modification, consolidation
or extension agreements, if any, with evidence of recording thereon, if
any;
(v) any of (A) the original or duplicate original mortgagee
title insurance policy and all riders thereto; (B) a title search showing
no lien (other than standard exceptions) on the Mortgaged Property senior
to the lien of the Mortgage or (C) an opinion of counsel of the type
customarily rendered in the applicable jurisdiction in lieu of a title
insurance policy;
(vi) the original of any guarantee executed in connection with
the Mortgage Note;
(vii) for each Mortgage Loan, if any, which is secured by a
residential long-term lease, a copy of the lease with evidence of
recording indicated thereon, or, if the lease is in the process of being
recorded, a photocopy of the lease, certified by an officer of the
respective prior owner of such Mortgage Loan or by the applicable title
insurance company, closing/settlement/escrow agent or company or closing
attorney to be a true and correct copy of the lease transmitted for
recordation;
(viii) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage; and
(ix) for each Mortgage Loan secured by Cooperative Stock, the
originals of the following documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if
any;
(F) The executed UCC-1 financing statement with evidence
of recording thereon; and
(G) Executed UCC-3 financing statements or other
appropriate UCC financing statements required by state law,
evidencing a complete and unbroken line from the mortgagee to the
Trustee with evidence of recording thereon (or in a form suitable
for recordation).
provided, however, that on the Closing Date, with respect to item (iii), if an
Assignment of Mortgage is required to be recorded as set forth below, the
Depositor has delivered to the
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Trustee or the related Custodian on behalf of the Trustee, as the case may be, a
copy of such Assignment of Mortgage in blank rather than in the name of the
Trustee and has caused the Servicer to retain the completed Assignment of
Mortgage for recording as described below, unless such Mortgage has been
recorded in the name of MERS or its designee. In addition, if the Depositor is
unable to deliver or cause the delivery of any original Mortgage Note due to the
loss of such original Mortgage Note, the Depositor may deliver a copy of such
Mortgage Note, together with a lost note affidavit, and shall thereby be deemed
to have satisfied the document delivery requirements of this Section 2.01(b).
If, in connection with any Mortgage Loans, the Depositor cannot
deliver (A) the Mortgage, (B) all interim recorded assignments, (C) all
assumption, modification, consolidation or extension agreements, if any, or (D)
the lender's title policy, if any, (together with all riders thereto), as
applicable, satisfying the requirements of clause (ii), (iii), (iv) or (v)
above, respectively, concurrently with the execution and delivery hereof because
such document or documents have not been returned from the applicable public
recording office in the case of clause (ii), (iii) or (iv) above, or because the
title policy, if applicable, has not been delivered to any of the Servicer, the
Sponsor or the Depositor, as applicable, by the applicable title insurer, if
any, in the case of clause (v) above, the Depositor shall promptly deliver or
cause to be delivered to the Trustee or the Custodian on behalf of the Trustee,
as the case may be, in the case of clause (ii), (iii) or (iv) above, such
Mortgage, such interim assignment or such assumption, modification,
consolidation or extension agreement, as the case may be, with evidence of
recording indicated thereon upon receipt thereof from the public recording
office, but in no event shall any such delivery of any such documents or
instruments be made later than one 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 or the Custodian, on behalf of the
Trustee, as the case may be, (1) from time to time additional original documents
evidencing an assumption or modification of a Mortgage Loan and (2) any other
documents required to be delivered by the Depositor or the Servicer to the
Trustee or the Custodian on the Trustee's behalf, as the case may be. In the
event that the original Mortgage is not delivered and in connection with the
payment in full of the related Mortgage Loan the public recording office
requires the presentation of a "lost instruments affidavit and indemnity" or any
equivalent document, because only a copy of the Mortgage can be delivered with
the instrument of satisfaction or reconveyance, the Depositor shall prepare,
execute and deliver or cause to be prepared, executed and delivered, on behalf
of the Trust, such a document to the public recording office.
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. As
set forth on Exhibit L attached hereto is a list of all states
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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.
In the case of Mortgage Loans that have been prepaid in full as of
the Closing Date, the Depositor, in lieu of delivering the above documents to
the Trustee, or the Custodian on the Trustee's behalf, will cause the Servicer
to remit to the Master Servicer for deposit in the Master Servicer Custodial
Account the portion of such payment that is required to be deposited in the such
account pursuant to Section 3.09.
Section 2.02. Acceptance by the Trustee of the Mortgage Loans.
Subject to the provisions of the following paragraph, the Trustee declares that
it, or a Custodian as its agent, will hold the documents referred to in Section
2.01 and the other documents delivered to it or the Custodian as its agent, as
the case may be, constituting the Mortgage Files, and that it will hold such
other assets as are included in the Trust Estate delivered to it, in trust for
the exclusive use and benefit of all present and future Certificateholders. Upon
execution and delivery of this document, the Trustee shall deliver or cause 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, such Person
has received the original Mortgage Note relating to each of the Mortgage Loans
listed on the Mortgage Loan Schedule.
Within 90 days after the execution and delivery of this Agreement,
the Trustee shall review, or cause the Custodian, on behalf of the Trustee, to
review, the Mortgage Files in such Person's possession, and shall deliver, no
later than 30 days after completion of such review, 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). In performing any
such review, the Trustee and the Custodian may conclusively rely on the
purported genuineness of any such document and any signature thereon.
If, in the course of such review, the Trustee or 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 Securities Administrator, the Trustee or the
Custodian discovers a breach by the Servicer or the Sponsor of any
representation, warranty or covenant under the Servicing Agreement 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 Sponsor, the Servicer
and the Depositor of such failure to meet the requirements of Section 2.01 or of
such breach and request that the Servicer or the Sponsor, as applicable, deliver
such missing documentation or cure such defect breach within 90 days of its
discovery or its receipt of notice of any such
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defect or breach. If the Sponsor or the Servicer, as the case may be, does not
deliver such missing documents or cure such breach in all material respects
during such period, the Trustee shall enforce the Servicer's or Sponsor's
obligation, as the case may be, under the Servicing Agreement or the Mortgage
Loan Purchase Agreement, as applicable, and cause the Servicer or Sponsor, as
applicable, to either (a) solely in the case of the Sponsor, substitute for the
related Mortgage Loan a Substitute Mortgage Loan, which substitution shall be
accomplished in the manner and subject to the conditions set forth below or (b)
purchase such Mortgage Loan from the Trust at the Purchase Price for such
Mortgage Loan; provided, however, that in no event shall such a substitution
occur more than two years from the Closing Date; provided, further, that such
substitution or repurchase must occur within 90 days of when such defect was
discovered if such defect will cause the Mortgage Loan not to be a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code.
Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to this Section 2.02 shall be made more than 90 days after
the Closing Date unless the Depositor delivers to the Securities Administrator
an Opinion of Counsel, which Opinion of Counsel shall not be at the expense of
the Trustee, the Securities Administrator or the Trust Estate, addressed to the
Trustee and the Securities Administrator, to the effect that such substitution
will not (i) result in the imposition of the tax on "prohibited transactions" on
any REMIC created hereunder or contributions after the Start-up Day, as defined
in Sections 860F(a)(2) and 860G(d) of the Code, respectively, or (ii) cause any
REMIC created hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding.
It is understood that the scope of the Trustee's 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 applicable Mortgage Loans identified in the
related Mortgage Loan Schedule based solely upon the review of items (i) and
(xi) in the definition of Mortgage Loan Schedule. Neither the Trustee nor the
Custodian shall have any responsibility for determining whether any document is
valid and binding, whether the text of any assignment or endorsement is in
proper or recordable form, whether any document has been recorded in accordance
with the requirements of any applicable jurisdiction, or whether a blanket
assignment is permitted in any applicable jurisdiction.
In the event of a discovery of a breach of any representation or
warranty of the Servicer or the Sponsor, the Trustee shall enforce the rights of
the Trust under the Servicing Agreement and the Mortgage Loan Purchase Agreement
for the benefit of the Certificateholders. In the event of a breach of the
representations or warranties with respect to the Mortgage Loans set forth in
the Servicing Agreement, the Trustee shall enforce the right of the Trust to be
indemnified for such breach of representation or warranty. In addition, if a
breach of a representation with respect to a Mortgage Loan set forth in clauses
([k]) or ([o]) of paragraph [3] or clauses ([f]) or ([oo]) of paragraph [4] of
the Mortgage Loan Purchase Agreement occurs as a result of a violation of an
applicable predatory or abusive lending law, the Trustee shall enforce the right
of the Trust to reimbursement by the Sponsor for all costs or damages incurred
by the Trust as a result of the violation of such law (such amount, the
"Reimbursement Amount"), but in the case of a breach of a representation set
forth in clauses ([k]) or ([o]) of paragraph [3] of the Mortgage Loan Purchase
Agreement, only to the extent the
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Servicer does not so reimburse the Trust. It is understood and agreed that,
except for any indemnification provided in the Servicing Agreement and the
payment of any Reimbursement Amount, the obligation of the Servicer or the
Sponsor to cure or to repurchase (or in the case of the Sponsor, to substitute
for) any Mortgage Loan as to which a document is missing, a material defect in a
constituent document exists or as to which such a breach has occurred and is
continuing shall constitute the sole remedy against the Servicer or the Sponsor
in respect of such omission, defect or breach available to the Trustee on behalf
of the Certificateholders.
With respect to the representations and warranties relating to the
Mortgage Loans set forth in the Mortgage Loan Purchase Agreement that are made
to the best of the Sponsor's knowledge or as to which the Sponsor had no
knowledge, if it is discovered by the Depositor, the Master Servicer or the
Trustee that the substance of such representation or warranty is inaccurate and
such inaccuracy materially and adversely affects the interest of the
Certificateholders in the related Mortgage Loan then, notwithstanding the
Sponsor's lack of knowledge with respect to the substance of such representation
or warranty being inaccurate at the time the representation or warranty was
made, such inaccuracy shall be deemed a breach of the applicable representation
or warranty.
It is understood and agreed that the representations and warranties
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 Sponsor
set forth in this Section 2.02 to cure, substitute for or repurchase a Mortgage
Loan pursuant to the Mortgage Loan Purchase Agreement constitute the sole
remedies available to the Certificateholders and to the Trustee on their behalf
respecting a breach of the representations and warranties contained in the
Mortgage Loan Purchase Agreement.
The representations and warranties of the Servicer with respect to
the Mortgage Loans in the Servicing Agreement, which have been assigned to the
Trustee hereunder, were made as of the date specified in the 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
the Servicer under the Servicing Agreement and (ii) a representation or warranty
of the Sponsor under the Mortgage Loan Purchase Agreement, the only right or
remedy of the Trustee or of any Certificateholder shall be the Trustee's right
to enforce the obligations of the Servicer under any applicable representation
or warranty made by it. The Trustee acknowledges that the Sponsor shall have no
obligation or liability with respect to any breach of a representation or
warranty made by it with respect to the Mortgage Loans if the fact, condition or
event constituting such breach also constitutes a breach of a representation or
warranty made by the Servicer in the Servicing Agreement, without regard to
whether the 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 Sponsor shall
deliver to the Trustee (or Custodian on behalf of the Trustee), for the benefit
of the Certificateholders, the
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Mortgage Note, the Mortgage, the related Assignment of Mortgage (except for any
Mortgage which has been recorded in the name of MERS or its designee), and such
other documents and agreements as are otherwise required by Section 2.01, with
the Mortgage Note endorsed and the Mortgage assigned as required by Section
2.01. No substitution is permitted to be made in any calendar month after the
Determination Date for such month. Monthly Payments due with respect to any such
Substitute Mortgage Loan in the month of substitution shall not be part of the
Trust Estate and will be retained by the Depositor. For the month of
substitution, distributions to Certificateholders will include the Monthly
Payment due for such month on any Defective Mortgage Loan for which the
Depositor has substituted a Substitute Mortgage Loan.
The 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 Sponsor shall be
deemed to have made to the Trustee with respect to such Substitute Mortgage
Loan, as of the date of substitution, the representations and warranties made
pursuant to paragraph 4 of the Mortgage Loan Purchase Agreement. Upon any such
substitution and the deposit to the Master Servicer Custodial Account of any
required Substitution Adjustment Amount (as described in the next paragraph) and
receipt by the Trustee of a Request for Release, the Trustee shall release, or
shall direct the Custodian to release, the Mortgage File relating to such
Defective Mortgage Loan to the Sponsor, and shall execute and deliver at the
Sponsor's direction such instruments of transfer or assignment prepared by the
Sponsor, in each case without recourse, as shall be necessary to vest title in
the Sponsor, 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 Sponsor substitutes one or more
Substitute Mortgage Loans for one or more Defective Mortgage Loans, the amount
(if any) by which the aggregate principal balance of all such Substitute
Mortgage Loans substituted by the Sponsor, as of the date of substitution is
less than the aggregate Stated Principal Balance of all such Defective Mortgage
Loans substituted by the Sponsor (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 by the
Sponsor to the Master Servicer for deposit to the Master Servicer Custodial
Account on or before the [18th] of the month succeeding the calendar month
during which the related Mortgage Loan is required to be purchased or replaced
hereunder.
The Trustee shall retain or shall cause the Custodian to retain, as
applicable, possession and custody of each Mortgage File in accordance with and
subject to the terms and conditions set forth herein. The Master Servicer shall
cause to be promptly delivered to the Trustee or the Custodian on behalf of the
Trustee, as the case may be, upon the execution or, in the case of documents
requiring recording, receipt thereof, the originals of such other documents or
instruments constituting the Mortgage File as come into the Master Servicer's
possession from time to time.
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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). In connection with making the
certifications required hereunder, to the extent a title search or opinion of
counsel had been provided in lieu of a title policy for any Mortgage Loan, the
Trustee or the Custodian on its behalf, as applicable, shall only be responsible
for confirming that a title search or opinion of counsel has been provided for
such Mortgage Loan and shall not be deemed to have certified that the content of
such title search or opinion of counsel is sufficient to meet the requirements
of Section 2.01(b)(v).
Section 2.03. Representations and Warranties 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 [insert form and state of
organization] and has all licenses necessary to carry on its business as
now being conducted and is licensed, qualified and in good standing in
each of the states where a Mortgaged Property securing a Mortgage Loan is
located if the laws of such state require licensing or qualification in
order to conduct business of the type conducted by the Master Servicer.
The Master Servicer has power and authority to execute and deliver this
Agreement and to perform in accordance herewith; the execution, delivery
and performance of this Agreement (including all instruments of transfer
to be delivered pursuant to this Agreement) by the Master Servicer and the
consummation of the transactions contemplated hereby have been duly and
validly authorized. This Agreement, assuming due authorization, execution
and delivery by the other parties hereto, evidences the valid, binding and
enforceable obligation of the Master Servicer, subject to applicable law
except as enforceability may be limited by (A) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other similar
laws affecting the enforcement of the rights of creditors and (B) general
principles of equity, whether enforcement is sought in a proceeding in
equity or at law. All requisite corporate action has been taken by the
Master Servicer to make this Agreement valid and binding upon the Master
Servicer in accordance with its terms.
(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 charter
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
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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. Upon discovery by any of the Depositor,
the Master Servicer, the Securities Administrator or the Trustee of a breach of
any of the representations and warranties set forth in this Section 2.03, the
party discovering such breach shall give prompt written notice to the other
parties.
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.
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Upon discovery by any of the Depositor, the Master Servicer, the
Securities Administrator or the Trustee that any of the representations and
warranties set forth in this Section 2.04 is not accurate (referred to herein as
a "breach") and that such breach materially and adversely affects the interests
of the Certificateholders in the related Mortgage Loan, the party discovering
such breach shall give prompt written notice to the other parties; provided that
any such breach that causes the Mortgage Loan not to be a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code shall be deemed to
materially and adversely affect the interests of the Certificateholders. Within
90 days of its discovery or its receipt of notice of any such breach, the
Depositor shall cure such breach in all material respects or shall either (i)
repurchase the Mortgage Loan or any property acquired in respect thereof from
the Trustee at a price equal to the Purchase Price or (ii) if within two years
of the Closing Date, substitute for such Mortgage Loan in the manner described
in Section 2.02; provided that if the breach would cause the Mortgage Loan to be
other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code,
any such repurchase or substitution must occur within 90 days from the date the
breach was discovered. The Purchase Price of any repurchase described in this
paragraph and the Substitution Adjustment Amount, if any, shall be remitted to
the Master Servicer for deposit to the Master Servicer Custodial Account. It is
understood and agreed that, except with respect to the second preceding
sentence, the obligation of the Depositor to repurchase or substitute for any
Mortgage Loan or Mortgaged Property as to which such a breach has occurred and
is continuing shall constitute the sole remedy respecting such breach available
to Certificateholders, or to the Trustee on behalf of Certificateholders, and
such obligation shall survive until termination of the Trust hereunder.
Section 2.05. Designation of Interests in the REMIC. The Depositor
hereby designates the Classes of Senior Certificates (other than the Class A-PO
and Class A-R Certificates) and the Classes of Subordinate Certificates as
"regular interests" and the Class A-R Certificate as the single class of
"residual interest" in the REMIC for the purposes of Code Sections 860G(a)(1)
and 860G(a)(2), respectively.
Section 2.06. Designation of Start-up Day. The Closing Date is
hereby designated as the "start-up day" of the REMIC within the meaning of
Section 860G(a)(9) of the Code.
Section 2.07. REMIC Certificate Maturity Date. Solely for purposes
of satisfying Section 1.860G-1(a)(4)(iii) of the Treasury Regulations, the
"latest possible maturity date" of the regular interests in the REMIC is
____________ ___, 20___.
Section 2.08. Execution and Delivery of Certificates. The Securities
Administrator has executed and delivered to or upon the order of the Depositor,
in exchange for the Mortgage Loans, together with all other assets included in
the definition of "Trust Estate," receipt of which is hereby acknowledged,
Certificates in authorized denominations which evidence ownership of the entire
Trust Estate.
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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 Servicer to service
and administer the Mortgage Loans in accordance with the terms of the Servicing
Agreement and shall have full power and authority to do any and all things which
it may deem necessary or desirable in connection with such master servicing and
administration. In performing its obligations hereunder, the Master Servicer
shall act in a manner consistent with this Agreement, subject to the prior
sentence, and with Customary Servicing Procedures. Furthermore, the Master
Servicer shall oversee and consult with the 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 the Servicer and shall cause the Servicer to perform and
observe the covenants, obligations and conditions to be performed or observed by
the Servicer under the Servicing Agreement. The Master Servicer shall
independently and separately monitor the Servicer's servicing activities with
respect to each 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 Servicer's and the Master Servicer's
records, and based on such reconciled and corrected information, prepare the
Master Servicer's Certificate and any other information and statements required
hereunder. The Master Servicer shall reconcile the results of its Mortgage Loan
monitoring with the actual remittances of the Servicer to the Master Servicer
Custodial Account pursuant to the Servicing Agreements.
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 Servicer 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 Servicing Agreement.
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.
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Section 3.02. Monitoring of Servicer.
(a) The Master Servicer shall be responsible for reporting to
the Trustee, the Securities Administrator and the Depositor the compliance by
the Servicer with its duties under the Servicing Agreement. In the review of the
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 the Servicing Agreement. In the event that the Master Servicer, in its
judgment, determines that the Servicer should be terminated in accordance with
the 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 the Servicer under the
Servicing Agreement, and shall, in the event that the Servicer fails to perform
its obligations in accordance with the Servicing Agreement, subject to the
preceding paragraph, terminate the rights and obligations of the Servicer
thereunder and act as successor Servicer of the Mortgage Loans under the
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
the Servicing Agreement 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 and Trustee, as applicable,
shall pay the costs of such enforcement at its own expense, and shall be
reimbursed therefor only (i) from a general recovery resulting from such
enforcement to the extent, if any, that such recovery exceeds all amounts due in
respect of the related Mortgage Loan or (ii) from a specific recovery of costs,
expenses or attorneys fees against the party whom such enforcement is directed,
provided that the Master Servicer and the Trustee, as applicable, shall not be
required to prosecute or defend any legal action except to the extent that the
Master Servicer or the Trustee, as applicable, shall have received reasonable
indemnity for its costs and expenses in pursuing such action.
(c) To the extent that the costs and expenses of the Master
Servicer or the Trustee, as applicable, related to any termination of the
Servicer, appointment of a successor Servicer or the transfer and assumption of
servicing by the Master Servicer or the Trustee, as applicable, with respect to
the 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 the 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 Servicer to service the
Mortgage Loans in accordance with the Servicing Agreement) are not fully and
timely
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reimbursed by the terminated Servicer, the Master Servicer or the Trustee, as
applicable, shall be entitled to reimbursement of such costs and expenses from
the Master Servicer Custodial Account.
(d) To the extent that any Servicing Transfer Costs are not
fully and timely reimbursed by the terminated Servicer, the Master Servicer or
the Trustee, as applicable, shall be entitled to reimbursement of such costs and
expenses from the Master Servicer Custodial Account.
(e) The Master Servicer shall require the Servicer to comply
with the remittance requirements and other obligations set forth in the
Servicing Agreement.
(f) 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.
(g) Notwithstanding the foregoing, to the extent the Master
Servicer engages any affiliate or third party vendor in connection with the
performance of any of its duties under this Agreement, the Master Servicer shall
immediately notify the Depositor in writing of such engagement. To the extent
the Depositor notifies the Master Servicer and the Trustee that it has
determined that any such affiliate or third party vendor is a Servicing Function
Participant, the Master Servicer shall cause such Servicing Function Participant
to prepare a separate assessment and attestation report, as contemplated by
Section 3.20 of this Agreement and deliver such report to the Securities
Administrator as set forth in Section 3.22 of this Agreement. In addition, to
the extent the Depositor notifies the Master Servicer and the Trustee that it
has determined that any such Servicing Function Participant would be a
"servicer" within the meaning of Item 1101 of Regulation AB and meets the
criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB (an "Additional
Servicer"), the Master Servicer shall cause such Additional Servicer to prepare
a separate compliance statement as contemplated by Section 3.19 of this
Agreement and deliver such statement to the Securities Administrator as set
forth in Section 3.22 of this Agreement.
In addition, if the Depositor determines any such Servicing Function
Participant would be a "servicer" within the meaning of Item 1101 of Regulation
AB, the Master Servicer shall cause such Servicing Function Participant to
provide the Depositor and the Securities Administration the information required
by Section 1108(b) and 1108(c) of Regulation AB within two Business Days
following such engagement. To the extent the Master Servicer terminates any such
Servicing Function Participant that the Depositor has determined is a "servicer"
within the meaning of Item 1101 of Regulation AB, the Master Servicer shall
provide the Depositor and the Securities Administrator the information required
to enable the Securities Administrator to accurately and timely report such
event under Item 6.02 of Form 8-K (if the Trust's Exchange Act reporting
requirements have not been suspended pursuant to Section 15(d) of the Exchange
Act as set forth in Section 3.22(g)
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
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Master Servicer against losses resulting from dishonest or fraudulent acts
committed by the Master Servicer's personnel, any employees of outside firms
that provide data processing services for the Master Servicer, and temporary
contract employees or student interns. No provision of this Section 3.03
requiring such fidelity bond and errors and omissions insurance shall diminish
or relieve the Master Servicer from its duties and obligations as set forth in
this Agreement. The minimum coverage under any such bond and insurance policy
shall be at least equal to the corresponding amounts required by Xxxxxx Xxx in
the Xxxxxx Mae Servicing Guide or by Xxxxxxx Mac in the Xxxxxxx Xxx Xxxxxxx' &
Servicers' Guide, as amended or restated from time to time, or in an amount as
may be permitted to the Master Servicer by express waiver of Xxxxxx Xxx or
Xxxxxxx Mac. In the event that any such policy or bond ceases to be in effect,
the Master Servicer shall obtain a comparable replacement policy or bond from an
insurer or issuer, meeting the requirements set forth above as of the date of
such replacement.
Section 3.04. Access to Certain Documentation.
The Master Servicer shall provide, and the Master Servicer shall
cause the Servicer to provide in accordance with the Servicing Agreement, to the
OCC, the OTS, the FDIC and to comparable regulatory authorities supervising
Holders of Certificates and the examiners and supervisory agents of the OCC, the
OTS, the FDIC and such other authorities, access to the documentation required
by applicable regulations of the OCC, the OTS, the FDIC and such other
authorities with respect to the Mortgage Loans. Such access shall be afforded
without charge, but only upon reasonable and prior written request and during
normal business hours at the offices designated by the Master Servicer and the
Servicer. In fulfilling such request for access, the Master Servicer shall not
be responsible to determine the sufficiency of any information provided by the
Servicer. Nothing in this Section 3.04 shall limit the obligation of the Master
Servicer and the Servicer to observe any applicable law and the failure of the
Master Servicer or the Servicer to provide access as provided in this Section
3.04 as a result of such obligation shall not constitute a breach of this
Section 3.04.
Section 3.05. Maintenance of Primary Mortgage Insurance Policy;
Claims.
(a) The Master Servicer shall not take, or permit the Servicer
(to the extent such action is prohibited under the Servicing Agreement) to take,
any action that would result in noncoverage under any applicable Primary
Mortgage Insurance Policy of any loss which, but for the actions of the Master
Servicer or Servicer, would have been covered thereunder. The Master Servicer
shall use its best reasonable efforts to cause the Servicer (to the extent
required under the 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 the Mortgage Loan in
accordance with the provisions of this Agreement and the Servicing Agreement, as
applicable. The Master Servicer shall not, and shall not permit the Servicer (to
the extent required under the 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
Servicing Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause the
Servicer (to the extent required under the Servicing Agreement) to present, on
behalf of the Trustee and the
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Certificateholders, claims to the insurer under any Primary Mortgage Insurance
Policies and, in this regard, to take such reasonable action as shall be
necessary to permit recovery under any Primary Mortgage Insurance Policies
respecting defaulted Mortgage Loans. Pursuant to Sections 3.08 and 3.09, any
amounts collected by the Master Servicer or the Servicer under any Primary
Mortgage Insurance Policies shall be deposited in the Master Servicer Custodial
Account, subject to withdrawal pursuant to Section 3.11.
Section 3.06. Rights of the Depositor, the Securities Administrator
and the Trustee in Respect of the Master Servicer.
The Depositor may, but is not obligated to, enforce the obligations
of the Master Servicer hereunder and may, but is not obligated to, perform, or
cause a designee to perform, any defaulted obligation of the Master Servicer
hereunder and in connection with any such defaulted obligation to exercise the
related rights of the Master Servicer hereunder; provided that the Master
Servicer shall not be relieved of any of its obligations hereunder by virtue of
such performance by the Depositor or its designee. None of the Securities
Administrator, the Trustee or the Depositor shall have any responsibility or
liability for any action or failure to act by the Master Servicer and the
Securities Administrator, the Trustee or the Depositor shall not be obligated to
supervise the performance of the Master Servicer hereunder or otherwise.
Section 3.07. Trustee to Act as Master Servicer.
In the event the Master Servicer or any successor master servicer
shall for any reason no longer be the Master Servicer hereunder (including by
reason of an Event of Default), the Trustee as trustee hereunder shall within 90
days of such time, assume, if it so elects, or shall appoint a successor Master
Servicer to assume, all of the rights and obligations of the Master Servicer
hereunder and all of the rights and obligations of the Master Servicer under the
Servicing Agreement, unless the Trustee elects to terminate the Servicing
Agreement, in accordance with the terms thereof. Unless the Trustee so elects to
terminate the Servicing Agreement, the Trustee, its designee or the successor
master servicer for the Trustee shall be deemed to have assumed all of the
Master Servicer's interest therein with respect to the related Mortgage Loans
and to have replaced the Master Servicer as a party to the Servicing Agreement,
to the same extent as if the rights and duties under the Servicing Agreement had
been assigned to the assuming party, except that the Master Servicer shall not
thereby be relieved of any liability or obligations under the Servicing
Agreement, with respect to the Master Servicer's duties to be performed prior to
its termination hereunder. Any such assumption shall be subject to Sections 7.02
and 8.05.
The predecessor Master Servicer at its expense shall, upon request
of the Trustee, deliver to the assuming party all documents and records relating
to the Mortgage Loans then being master serviced by such Master Servicer and an
accounting of amounts collected and held by such Master Servicer, and shall
transfer control of the Master Servicer Custodial Account, and any investment
accounts to the successor Master Servicer, and otherwise use its best efforts to
effect the orderly and efficient transfer of the rights and duties relating to
such Mortgage Loans to the assuming party. The Trustee shall be entitled to be
reimbursed from the predecessor Master Servicer (or the Trust if the predecessor
Master Servicer is unable to fulfill such obligations) for all Master Servicing
Transfer Costs.
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Section 3.08. Servicer Custodial Account and Escrow Account.
The Master Servicer shall enforce the obligation of the Servicer to
establish and maintain a Servicer Custodial Account in accordance with the
Servicing Agreement, with records to be kept with respect thereto on a loan by
loan basis, into which accounts shall be deposited within 48 hours (or as of
such other time specified in the Servicing Agreement) of receipt all collections
of principal and interest on any Mortgage Loan and all collections with respect
to any REO Property received by the Servicer, including Principal Prepayments,
Insurance Proceeds, Liquidation Proceeds, Recoveries and Advances made from the
Servicer's own funds (less servicing compensation as permitted by the Servicing
Agreement) 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 Servicer Custodial Account for purposes required or permitted by
this Agreement.
To the extent required by the Servicing Agreement and by the related
Mortgage Note and not violative of current law, the Master Servicer shall
require the Servicer to establish and maintain one or more escrow accounts
(collectively, the "Escrow Account") and deposit and retain therein all
collections from the Mortgagors (or Advances by the 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 the Servicer to establish an Escrow Account in violation of applicable
law.
Section 3.09. Collection of Mortgage Loan Payments, Master Servicer
Custodial Account and Distribution 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 Servicer 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 Servicing
Agreement.
(b) The Securities Administrator shall establish and maintain
the Distribution Account. The Securities Administrator shall, promptly upon
receipt, deposit in the Distribution Account and retain therein any amounts
which are required to be deposited in the Distribution Account by the Securities
Administrator.
(c) The Master Servicer shall establish and maintain the Master
Servicer Custodial Account, which shall be an Eligible Account. The Master
Servicer shall, promptly upon receipt, deposit in the Master Servicer Custodial
Account and retain therein any amounts which are required to be deposited in the
Master Servicer Custodial Account by the Master Servicer.
(d) The Master Servicer shall deposit or cause to be deposited
into the Master Servicer Custodial Account, on the same Business Day of receipt
(except as otherwise specifically provided herein), the following payments and
collections remitted to the Master Servicer by the Servicer from its Servicer
Custodial Account pursuant to the Servicing Agreement or otherwise or received
by the Master Servicer in respect of the Mortgage Loans
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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 3.08, and other than any Excess
Proceeds and (B) any Insurance Proceeds released from an Escrow Account;
(iv) any amount required to be deposited by the Master Servicer
pursuant to Section 3.09(e) in connection with any losses on Permitted
Investments with respect to the Master Servicer Custodial Account;
(v) any amounts relating to REO Property required to be remitted
by the Servicer;
(vi) Periodic Advances made by the Servicer pursuant to the
Servicing Agreement (or, if applicable, by the Master Servicer or the
Trustee pursuant to Section 3.21) and any Compensating Interest paid by
the Servicer pursuant to the Servicing Agreement;
(vii) all Purchase Prices, all Substitution Adjustment Amounts and
all Reimbursement Amounts to the extent received by the Servicer;
(viii) any Recoveries relating to the Mortgage Loans; and
(ix) any other amounts required to be deposited hereunder.
If the Master Servicer shall deposit any amount not required to be
deposited, it may at any time withdraw such amount from the Master Servicer
Custodial Account, any provision herein to the contrary notwithstanding. All
funds required to be deposited in the Master Servicer Custodial Account shall be
held by the Master Servicer in trust for the Certificateholders until disbursed
in accordance with this Agreement or withdrawn in accordance with Section 3.11.
(e) Each institution at which the Master Servicer Custodial
Account is maintained shall invest the funds therein as directed in writing by
the Master Servicer in Permitted Investments, which shall mature not later than
the Business Day next preceding the Distribution Date (except that if such
Permitted Investment is an obligation of the institution that maintains such
account, then such Permitted Investment shall mature not later than such
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Distribution Date) and, in each case, shall not be sold or disposed of prior to
its maturity. All such Permitted Investments shall be made in the name of the
Trustee, for the benefit of the Certificateholders. All Master Servicer
Custodial Account Reinvestment Income shall be for the benefit of the Master
Servicer as part of its master servicing compensation and shall be remitted to
the Master Servicer monthly as provided herein. The amount of any losses
realized in the Master Servicer Custodial Account incurred in any such account
in respect of any such investments shall promptly be deposited by the Master
Servicer from its own funds in the Master Servicer Custodial Account.
(f) Each institution at which the Distribution Account is
maintained shall invest the funds therein if directed in writing by the
Securities Administrator in Permitted Investments that are obligations of the
institution that maintains the Distribution Account, which shall mature on the
Distribution Date and shall not be sold or disposed of prior to its maturity.
All such Permitted Investments shall be made in the name of the Trustee, for the
benefit of the Certificateholders. All income and gains net of any losses
realized since the preceding Distribution Date from Permitted Investments of
funds in the Distribution Account shall be for the benefit of the Securities
Administrator as additional compensation and the amount of any losses realized
in the Distribution Account in respect of any such Permitted Investments shall
promptly be deposited by the Securities Administrator from its own funds in the
Distribution Account.
(g) The Master Servicer shall give notice to the Depositor, the
Trustee, the Securities Administrator and the Rating Agencies of any proposed
change of location of the Master Servicer Custodial Account not later than 30
days after and not more that 45 days prior to any change thereof. The Securities
Administrator shall give notice to the Depositor, the Trustee, the Master
Servicer and the Rating Agencies of any proposed change of the location of the
Distribution Account maintained by the Securities Administrator not later than
30 days after and not more than 45 days prior to any change thereof. The
creation of the Master Servicer Custodial Account and the Distribution Account
shall be evidenced by a certification substantially in the form of Exhibit F
hereto.
Section 3.10. Access to Certain Documentation and Information
Regarding the Mortgage Loans.
The Master Servicer shall afford and shall enforce the obligation of
the Servicer 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 Servicer.
Section 3.11. Permitted Withdrawals from the Distribution Account,
the Master Servicer Custodial Account and the Servicer Custodial Account.
(a) The Securities Administrator shall withdraw funds from the
Distribution Account to reimburse the Depositor for expenses incurred by it and
reimbursable pursuant to this Agreement, including but not limited to, Section
7.03, to pay itself and the Trustee any
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amounts due itself or the Trustee under this Agreement and for distributions to
Certificateholders in the manner specified in this Agreement. In addition, the
Master Servicer may from time to time make withdrawals from the Master Servicer
Custodial Account for the following purposes:
(i) to pay to the Servicer (to the extent not previously
retained by it), the Servicing Fee to which they are entitled pursuant to
the Servicing Agreement and to pay itself any Master Servicer Custodial
Account Reinvestment Income;
(ii) to pay to the Securities Administrator and the Trustee any
amounts due to the Securities Administrator and the Trustee under this
Section Agreement (including, but not limited to, all amounts provided for
under Section 9.11, other than amounts provided for in sentences one, two
and three of Section 9.11);
(iii) to reimburse the Servicer (or, if applicable, itself or the
Trustee) for unreimbursed Advances made pursuant to the Servicing
Agreement (or in the case of itself or the Trustee, pursuant to Section
3.21), such right of reimbursement pursuant to this clause (iii) being
limited first to amounts received on the Mortgage Loans in respect of
which any such Advance was made and then limited to amounts received on
all the Mortgage Loans;
(iv) to reimburse the Servicer (or, if applicable, itself or the
Trustee) for any Nonrecoverable Advance previously made, such right of
reimbursement pursuant to this clause (iv) being limited first to amounts
received on the Mortgage Loans in respect of which such Nonrecoverable
Advance was made and then limited to amounts received on all the Mortgage
Loans;
(v) to reimburse the Servicer for Insured Expenses from the
related Insurance Proceeds;
(vi) to pay to the purchaser, with respect to each Mortgage Loan
or REO Property that has been purchased pursuant to Section 2.02 or 2.04,
all amounts received thereon after the date of such purchase;
(vii) to reimburse itself for expenses incurred by it and
reimbursable pursuant to this Agreement, including but not limited to,
Section 7.03;
(viii) to withdraw any amount deposited in the Master Servicer
Custodial Account and not required to be deposited therein; and
(ix) to clear and terminate the Master Servicer Custodial Account
upon termination of this Agreement pursuant to Section 10.01.
If the Master Servicer shall remit to the Securities Administrator
any amount not required to be remitted, it may at any time direct the Securities
Administrator to withdraw such amount from the Distribution Account, any
provision herein to the contrary notwithstanding. Such direction may be
accomplished by delivering an Officer's Certificate to the Securities
Administrator which describes the amounts remitted in error to the Securities
Administrator for
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deposit to the Distribution Account. In no event shall the Securities
Administrator incur liability for withdrawals from the Distribution Account at
the direction of the Master Servicer.
(b) On each Distribution Date, funds on deposit in the
Distribution Account shall be used to make payments on the Regular Certificates
and the Class A-R Certificate as provided in Sections 5.01 and 5.02. The
Distribution Account shall be cleared and terminated upon termination of this
Agreement pursuant to Section 10.01.
Section 3.12. Maintenance of Hazard Insurance and Other Insurance.
For each Mortgage Loan, the Master Servicer shall enforce any
obligation of the Servicer under the Servicing Agreement to maintain or cause to
be maintained fire, flood and hazard insurance with extended coverage customary
in the area where the Mortgaged Property is located in accordance with the
Servicing Agreement. It is understood and agreed that such insurance provided
for in this Section 3.12 shall be with insurers meeting the eligibility
requirements set forth in the 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 3.08 and 3.09, any amounts collected by the
Master Servicer, or by the 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
Servicing Agreement) shall be deposited into the Master Servicer Custodial
Account, subject to withdrawal pursuant to Sections 3.09 and 3.11. Any cost
incurred by the Master Servicer or the 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 the
Servicer pursuant to Sections 3.09 and 3.11.
Section 3.13. Presentment of Claims and Collection of Proceeds.
The Master Servicer shall (to the extent provided in the Servicing
Agreement) cause the 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 the Servicer and
remitted to the Master Servicer) in respect of such policies, bonds or contracts
shall be promptly deposited in the Master Servicer Custodial Account upon
receipt, except that any amounts realized that are to be applied to the repair
or restoration of the related Mortgaged Property as a condition precedent to the
presentation of claims on the related Mortgage Loan to the insurer under any
applicable Insurance Policy need not be so deposited (or remitted).
Section 3.14. Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
To the extent provided in the Servicing Agreement and to the extent
Mortgage
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Loans contain enforceable due on sale clauses, the Master Servicer shall cause
the Servicer to enforce such clauses in accordance with the 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 Servicing Agreement,
and, as a consequence, a Mortgage Loan is assumed, the original Mortgagor may be
released from liability in accordance with the Servicing Agreement.
Section 3.15. Realization Upon Defaulted Mortgage Loans; REO
Property.
(a) The Master Servicer shall cause the Servicer (to the extent
required under the 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 Servicing Agreement.
(b) With respect to any REO Property, the deed or certificate of
sale shall be taken in the name of the Trust for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. The
Master Servicer shall enforce the obligation of the Servicer, to the extent
provided in the Servicing Agreement, to (i) cause the name of the Trust to be
placed on the title to such REO Property and (ii) ensure that the title to such
REO Property references this Agreement. The Master Servicer shall, to the extent
provided in the Servicing Agreement, cause the Servicer to sell any REO Property
as expeditiously as possible and in accordance with the provisions of this
Agreement and the Servicing Agreement, as applicable. Pursuant to its efforts to
sell such REO Property, the Master Servicer shall cause the Servicer to protect
and conserve such REO Property in the manner and to the extent required by the
Servicing Agreement, subject to the REMIC Provisions. In the event that the
Trust Estate acquires any Mortgaged Property as aforesaid or otherwise in
connection with a default or imminent default on a Mortgage Loan, the Master
Servicer shall enforce the obligation of the Servicer to dispose of such
Mortgaged Property within the time period specified in the 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.
(c) The Master Servicer shall, to the extent required by the
Servicing Agreement, cause the Servicer to deposit all funds collected and
received in connection with the operation of any REO Property in the Servicer
Custodial Account.
(d) The 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.
(e) The Liquidation Proceeds from the final disposition of the
REO Property, net of any payment to the Servicer as provided above shall be
deposited in the Servicer Custodial Account on or prior to the Determination
Date in the month following
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receipt thereof and be remitted by wire transfer in immediately available funds
to the Servicer for deposit into the Servicer Custodial Account.
Notwithstanding any other provision of this Agreement, the Master
Servicer shall not permit any Mortgaged Property acquired by the Trust to be
rented (or allowed to continue to be rented) or otherwise used for the
production of income by or on behalf of the Trust in such a manner or pursuant
to any terms that would (i) cause such Mortgaged Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code,
(ii) result in the receipt by the REMIC if any "income from non-permitted
assets" within the meaning of Section 860F(a)(2)(B) of the Code or any "net
income from foreclosure property" which is subject to taxation under the REMIC
Provisions or (iii) subject the REMIC created hereunder to the imposition of any
federal, state or local income taxes on the income earned from such Mortgaged
Property under Section 860G(c) of the Code or otherwise, unless the Master
Servicer or Servicer, as applicable, has agreed to indemnify and hold harmless
the Trust with respect to the imposition of any such taxes.
Notwithstanding any other provision of this Agreement, the Master
Servicer and the Securities Administrator, as applicable, shall comply with all
federal withholding requirements with respect to payments to Certificateholders
of interest or original issue discount that the Master Servicer or the
Securities Administrator reasonably believes are applicable under the Code. The
consent of Certificateholders shall not be required for any such withholding.
Without limiting the foregoing, the Master Servicer agrees that it will not
withhold with respect to payments of interest or original issue discount in the
case of a Certificateholder that has furnished or caused to be furnished an
effective Form W-8 or an acceptable substitute form or a successor form and who
is not a "10 percent shareholder" within the meaning of Code Section
871(h)(3)(B) or a "controlled foreign corporation" described in Code Section
881(c)(3)(C) with respect to the Trust or the Depositor. In the event the
Securities Administrator withholds any amount from interest or original issue
discount payments or advances thereof to any Certificateholder pursuant to
federal withholding requirements, the Securities Administrator shall indicate
the amount withheld to such Certificateholder.
Section 3.16. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer or the Servicer of a notification that payment in full will be
escrowed in a manner customary for such purposes, the Master Servicer or the
Servicer will immediately notify the Trustee (or, at the direction of the
Trustee, the Custodian) by delivering, or causing to be delivered, two copies
(one of which will be returned to the Servicer with the Mortgage File) of a
Request for Release (which may be delivered in an electronic format acceptable
to the Trustee and the Master Servicer or the Servicer). Upon receipt of such
request, the Trustee or the Custodian, as applicable, shall within seven
Business Days release the Mortgage File to the Master Servicer or the Servicer.
The Trustee shall at the Master Servicer's or the Servicer's direction execute
and deliver to the Master Servicer or the Servicer the request for reconveyance,
deed of reconveyance or release or satisfaction of mortgage or such instrument
releasing the lien of the Mortgage relating to the Mortgage Loan, in each case
provided by the Master Servicer or the Servicer, together with the Mortgage Note
with written evidence of
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cancellation thereon. If the Mortgage has been recorded in the name of MERS or
its designee, the Master Servicer shall enforce the Servicer's obligation under
the Servicing Agreement take all necessary action to reflect the release of the
Mortgage on the records of MERS. Expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
related Mortgagor of the Mortgage Loan.
From time to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including for such purpose collection under
any Primary Mortgage Insurance Policy, any policy of flood insurance, any
fidelity bond or errors or omissions policy, or for the purposes of effecting a
partial release of any Mortgaged Property from the lien of the Mortgage or the
making of any corrections to the Mortgage Note or the Mortgage or any of the
other documents included in the Mortgage File, the Trustee or 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 Servicer. Subject to the further limitations
set forth below, the Master Servicer or the 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 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 the Servicer
shall deliver or cause to be delivered to the Trustee, for signature, as
appropriate, any court pleadings, requests for trustee's sale or other documents
necessary to effectuate such foreclosure or any legal action brought to obtain
judgment against the Mortgagor on the Mortgage Note or the Mortgage or to obtain
a deficiency judgment or to enforce any other remedies or rights provided by the
Mortgage Note or the Mortgage or otherwise available at law or in equity.
Section 3.17. Documents, Records and Funds in Possession of the
Master Servicer to be Held for the Trustee.
Notwithstanding any other provisions of this Agreement, the Master
Servicer shall cause the Servicer to transmit to the Trustee (or the Custodian
on behalf of the Trustee) as required by this Agreement and the Servicing
Agreement all documents and instruments in respect of a Mortgage Loan coming
into the possession of the Servicer from time to time and shall account fully to
the Trustee for any funds received by the Master Servicer or the Servicer or
which otherwise are collected by the Master Servicer or the Servicer as
Liquidation Proceeds, Recoveries or Insurance Proceeds in respect of any Loan.
All Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer or the Servicer in respect of any Mortgage Loans, whether from
the collection of principal and interest payments or from Liquidation Proceeds,
including but not limited to, any funds on deposit in the Distribution Account
or the Servicer Custodial Account, shall be held by the Master Servicer or the
Servicer for and on behalf of the Trustee and shall be and remain the sole and
exclusive property of the Trustee, subject to the applicable provisions of this
Agreement and the
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Servicing Agreement.
The Master Servicer also agrees that it shall not, and shall insure
that the Servicer shall not, knowingly create, incur or subject any Mortgage
File or any funds that are deposited in the Master Servicer Custodial Account,
the Servicer Custodial Account, the Distribution Account or any Escrow Account,
or any funds that otherwise are or may become due or payable to the Trustee for
the benefit of the Certificateholders, to any claim, lien, security interest,
judgment, levy, writ of attachment or other encumbrance created by such Master
Servicer or Servicer, or assert by legal action or otherwise any claim or right
of setoff against any Mortgage File or any funds collected on, or in connection
with, a Mortgage Loan, except, however, that the Master Servicer shall be
entitled to set off against and deduct from any such funds any amounts that are
properly due and payable to the Master Servicer under this Agreement.
Section 3.18. Master Servicer Compensation and Servicer
Compensation.
[Master Servicing compensation in the form of Master Servicer
Custodial Account Reinvestment Income shall be remitted to or retained by the
Master Servicer pursuant to Section 3.09(e). 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
therefore except as specifically provided in this agreement.]
Section 3.19. Annual Statement as to Compliance.
The Trustee, Securities Administrator and Master Servicer shall
deliver, and the Master Servicer shall cause each Additional Servicer engaged by
it to deliver, in electronic form, to the Depositor, the Securities
Administrator, the Trustee and each Rating Agency on or before March 5th of each
year, or if such day is not a Business Day the next Business Day (with a ten
calendar day cure period, but in no event later than March 15th), followed by a
hard copy within ten calendar days, commencing March 20__, a certificate in the
form required by Item 1123 of Regulation AB, to the effect that (i) an
authorized officer of the Trustee, Securities Administrator, Master Servicer or
Additional Servicer, as the case may be, has reviewed (or a review has been made
under his or her supervision of) such party's activities under this Agreement,
or such other applicable agreement in the case of an Additional Servicer, during
the prior calendar year or a portion thereof and (ii) to the best of such
officer's knowledge, based on such review, such party has fulfilled all of its
obligations under this Agreement, or such other applicable agreement in the case
of an Additional Servicer, in all material respects throughout the prior
calendar year or portion thereof or, if there has been a failure to fulfill any
such obligation in any material respect, specifying each such failure known to
such officer and the nature and status thereof. Promptly after receipt of such
certificate, the Depositor shall review such certificate and, if applicable,
consult with the Master Servicer, Securities Administrator and Trustee as to the
nature of any failure to fulfill any obligation under the Agreement, or such
other applicable agreement in the case of an Additional Servicer, in any
material respect.
In addition, the Master Servicer shall enforce the Servicer's
obligation under the Servicing Agreement to provide a similar statement to the
Securities Administrator relating to
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compliance with the Servicing Agreement.
Section 3.20. Assessments of Servicing Compliance; Registered Public
Accounting Firm Attestation Reports.
(a) Each of the Master Servicer, the Securities Administrator
and the Trustee shall furnish, and shall cause any Servicing Function
Participant engaged by it to furnish, at such party's expense, to the Depositor,
the Securities Administrator and the Trustee in electronic form, not later than
March 5th of each year, or if such day is not a Business Day the next Business
Day (with a ten calendar day cure period, but in no event later than March
15th), followed by a hard copy within ten calendar days, commencing in March
20___, a report on an assessment of compliance with the Servicing Criteria
applicable to it that contains (A) a statement by such party of its
responsibility for assessing compliance with the Servicing Criteria applicable
to it, (B) a statement that such party used the Servicing Criteria to assess
compliance with the Servicing Criteria applicable to it, (C) such party's
assessment of compliance with the Servicing Criteria applicable to it as of an
for the fiscal year covered by the Form 10-K required to be filed pursuant to
Section 3.22, including, if there has been any material instance of
noncompliance with the Servicing Criteria applicable to it, a discussion of each
such failure and the nature and status thereof, and (D) a statement that a
registered public accounting firm has issued an attestation report on such
party's assessment of compliance with the Servicing Criteria applicable to such
party as of an for such period.
Each such assessment of compliance report shall be addressed to the
Depositor, the Securities Administrator and the Trustee and signed by an
authorized officer of the applicable party, and shall address each of the
Relevant Servicing Criteria set forth on Exhibit Q hereto, or as set forth in
the notification furnished to the Depositor, the Securities Administrator and
the Trustee pursuant to Section 3.19(c). The Master Servicer, Securities
Administrator and the Trustee hereby acknowledge and agree that their respective
assessments of compliance will cover the items identified on Exhibit Q hereto as
being covered by such party. The parties to this Agreement acknowledge that
where a particular Servicing Criterion has multiple components, each party's
assessment of compliance (and related attestation of compliance) will relate
only to those components that are applicable to such party. Promptly after
receipt of each such report on assessment of compliance, the Depositor shall
review each such report and, if applicable, consult with the Master Servicer,
Securities Administrator or the Trustee as to the nature of any material
instance of noncompliance with the Servicing Criteria applicable to it (or any
Servicing Function Participant engaged or utilized by the Master Servicer,
Securities Administrator or the Trustee, as applicable).
(b) Each of the Master Servicer, the Securities Administrator
and the Trustee, at its own expense, shall cause, and shall cause any Servicing
Function Participant engaged by it, at such party's expense, to cause, not later
than March 5th of each year or if such day is not a Business Day, the next
Business Day (with a ten calendar day cure period), commencing in March 20 , a
registered public accounting firm (which may also render other services to the
Master Servicer, the Securities Administrator, the Trustee, or such other
Servicing Function Participants, as the case may be) and that is a member of the
American Institute of Certified Public Accountants to furnish electronically a
report to the Securities Administrator, the Trustee and the Depositor (with a
hard copy to follow within ten calendar
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days), to the effect that (i) it has obtained a representation regarding certain
matters from the management of such party, which includes an assertion that such
party has complied with the Servicing Criteria applicable to it, and (ii) on the
basis of an examination conducted by such firm in accordance with standards for
attestation engagements issued or adopted by the Public Company Accounting
Oversight Board, it is expressing an opinion as to whether such party's
assessment of compliance with the Servicing Criteria was fairly stated in all
material respects, or it cannot express an overall opinion regarding such
party's assessment of compliance with the Servicing Criteria. In the event that
an overall opinion cannot be expressed, such registered public accounting firm
shall state in such report why it was unable to express such an opinion. Such
report must be available for general use and not contain restricted use
language.
Promptly after receipt of each such accountants' attestation report,
the Depositor shall review the report and, if applicable, consult with the
Master Servicer, Securities Administrator or the Trustee if such report (i)
states that a party's assessment of compliance was not fairly stated in any
material respect or (ii) is unable to state an overall opinion.
(c) No later than 30 days following the end of each fiscal year
for the Trust for which a Form 10-K is required to be filed, (i) the Master
Servicer shall forward to the Securities Administrator, the Trustee and the
Depositor the name of each Servicing Function Participant engaged by it and what
Servicing Criteria will be addressed in the report on assessment of compliance
prepared by such Servicing Function Participant, (ii) the Securities
Administrator shall forward to the Trustee and the Depositor the name of each
Servicing Function Participant engaged by it and what Servicing Criteria will be
addressed in the report on assessment of compliance prepared by such Servicing
Function Participant and (iii) the Trustee shall forward to the Depositor the
name of each Servicing Function Participant engaged by it and what Servicing
Criteria will be addressed in the report on assessment of compliance prepared by
such Servicing Function Participant, in each case to the extent of any change
from the prior year's notice, if any.
(d) Beginning with fiscal year 20__ and thereafter, none of the
Master Servicer, the Securities Administrator, the Trustee or any Servicing
Function Participant engaged by such parties shall be required to deliver or
cause the delivery of any such assessments or attestation reports until April
15th unless such party has received written notice from the Depositor that a
Form 10-K is required to be filed in respect of the Trust for the preceding
fiscal year.
Section 3.21. Advances.
The Master Servicer shall enforce the obligations of the Servicer to
make a Periodic Advance in accordance with the Servicing Agreement. The Servicer
shall be entitled to be reimbursed from the Master Servicer Custodial Account
for all Advances of its own funds made pursuant to the 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 the Servicer on each applicable Advance Date no later than the
related Remittance Date. If the Servicer fails to make any required Advance
pursuant to the Servicing Agreement, the Master Servicer shall (i) unless the
Master Servicer determines that such Advance would not be recoverable in its
good faith business judgment, make such
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Advance not later than the Business Day preceding the related Distribution Date
and (ii) to the extent such failure leads to the termination of the Servicer and
until such time as a successor Servicer is appointed, continue to make Advances
required pursuant to the Servicing Agreement for any Distribution Date, within
the same time frame set forth in (i) above, unless the Master Servicer
determines (to the extent provided in the Servicing Agreement) that such Advance
would not be recoverable.
Section 3.22. Reports to the Securities and Exchange Commission. (a)
The Trustee, the Securities Administrator and the Master Servicer shall
reasonably cooperate with the Depositor to enable the Depositor to satisfy its
reporting requirements under the Exchange Act and the parties hereto shall
reasonably cooperate to enable the Securities and Exchange Commission
requirements with respect to the Depositor to be met in the event that the
Securities and Exchange Commission issues additional interpretive guidelines or
promulgates rules or regulations, or in the event of any other change of law
that would require reporting arrangements or the allocation of responsibilities
with respect thereto, as described in this Section 3.22, to be conducted or
allocated in a different manner. Without limiting the generality of the
foregoing, the Securities Administrator shall prepare on behalf of the Depositor
any Current Reports on Form 8-K (each, a "Form 8-K"), Distribution Reports on
Form 10-D (each, a "Form 10-D") and Annual Reports on Form 10-K (each, a "Form
10-K") as required by the Exchange Act and the rules and regulations of the
Securities and Exchange Commission thereunder, the Master Servicer shall sign
and the Securities Administrator shall file (via the Securities and Exchange
Commission's Electronic Data Gathering and Retrieval System) such forms on
behalf of the Depositor. Notwithstanding the foregoing, the Depositor shall file
the Form 8-Ks in connection with the issuance of the Certificates..
(b) Each Form 10-D shall be filed by the Securities
Administrator within 15 days after each Distribution Date and will include 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. In addition, the Securities Administrator shall
include under Item 1 of each Form 10-D any information required by Item 1121 of
Regulation AB to the extent relevant that is not included on the Distribution
Date Statement. Any disclosure in addition to the Distribution Date Statement
and any other information required by Item 1121 of Regulation AB ("Additional
Form 10-D Information") shall be determined by the party preparing such
information as set forth on Exhibit R-1 hereto and the Trustee shall compile
such disclosure pursuant to the following paragraph. The Securities
Administrator will have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-D Information, except to the extent
of its obligations as set forth in the next paragraph.
As set forth on Exhibit R-1 hereto, within five calendar days after
the related Distribution Date, certain parties hereto shall be required to
provide to the Depositor, the Securities Administrator and the Trustee, to the
extent known by such parties, any Additional Form 10-D Information, if
applicable. The Depositor will be responsible for all reasonable fees and
expenses assessed or incurred by the Securities Administrator in connection with
including any Additional Form 10-D Information on Form 10-D pursuant to this
paragraph, including converting any such disclosure to an XXXXX-compatible
format.
After preparing the Form 10-D, the Securities Administrator shall
forward
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electronically a draft copy of the Form 10-D to the Depositor and the Master
Servicer for review. No later than two Business Days prior to the 15th calendar
day after the related Distribution Date, the Depositor and Master Servicer shall
each indicate to the Securities Administrator their consent to the form and
substance of the draft Form 10-D (which consent may be in electronic form). If a
Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to be
amended, the Securities Administrator will follow the procedures set forth in
Section 3.22(e). Promptly (but no later than one Business Day) after filing with
the Securities and Exchange Commission, the Securities Administrator will make
available on its internet website a final executed copy of each Form 10-D. The
Securities Administrator shall have no liability for any loss, expense, damage
or claim arising out of or with respect to any failure to properly prepare
and/or timely file such Form 10-D, where such failure results from the
Securities Administrator's inability or failure to obtain or receive, on a
timely basis, any information from any party hereto (other than the Securities
Administrator or any Servicing Function Participant utilized by the Securities
Administrator) needed to prepare, arrange for execution or file such Form 10-D,
not resulting from its own negligence, bad faith or willful misconduct.
(c) On or before 90 days after the end of each fiscal year of
the Trust (or such earlier date as may be required by the Exchange Act and the
rules and regulations of the Securities and Exchange Commission), commencing in
20___, the Securities Administrator shall file a Form 10-K, in form and
substance as required by applicable law or applicable Securities and Exchange
Commission staff interpretations. Each such Form 10-K shall include the
following items, in each case to the extent they have been delivered to the
Securities Administrator within the applicable time frames set forth in this
Agreement: (i) an annual compliance statement for the Trustee, the Securities
Administrator, the Master Servicer and each Additional Servicer, as described
under Section 3.19, (ii)(A) the annual reports on assessment of compliance with
Servicing Criteria for the Master Servicer, the Securities Administrator, the
Trustee and each Servicing Function Participant, as described under Section
3.20, and (B) if the Master Servicer's, the Securities Administrator's, the
Trustee's or each Servicing Function Participant's report on assessment of
compliance with Servicing Criteria described under Section 3.20 identifies any
material instance of noncompliance or is not included, disclosure identifying
such instance of noncompliance or disclosure that such report is not included
and an explanation thereof, as the case may be, (iii)(A) the registered public
accounting firm attestation report for the Master Servicer, the Securities
Administrator, the Trustee and each Servicing Function Participant, as described
under Section 3.20, and (B) if any registered public accounting firm attestation
report described under Section 3.20 identifies any material instance of
noncompliance or is not included, disclosure identifying such instance of
noncompliance or disclosure that such report is not included and an explanation
thereof, as the case may be, and (iv) a Certification as described in this
Section 3.22(c). Any disclosure or information in addition to (i) through (iv)
above that is required to be included on Form 10-K ("Additional Form 10-K
Information") shall be prepared by the party responsible for preparing such
disclosure as set forth on Exhibit R-2 hereto and the Securities Administrator
shall compile such disclosure pursuant to the following paragraph. The
Securities Administrator will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-K Information, except
to the extent of its obligations as set forth in the next paragraph.
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As set forth on Exhibit R-2 hereto, no later than March 1st of each
year that the Trust is subject to the Exchange Act reporting requirements,
commencing in 20___, certain parties to this Agreement shall be required to
provide to the Securities Administrator and the Depositor, to the extent known
by such applicable parties, any Additional Form 10-K Information, if applicable.
The Depositor will be responsible for all reasonable fees and expenses assessed
or incurred by the Securities Administrator in connection with including any
Additional Form 10-K Information on Form 10-K pursuant to this paragraph,
including converting any such disclosure to an XXXXX-compatible format.
After preparing the Form 10-K, the Securities Administrator shall
forward electronically a draft copy of the Form 10-K to the Depositor and the
Master Servicer for review. No later than the close of business on the third
Business Day prior to the 10-K filing deadline, a senior officer of the Master
Servicer in charge of the master servicing function shall sign the Form 10-K and
return an electronic or fax copy of such signed Form 10-K, together with a
signed copy of the certification (the "Certification") attached hereto as
Exhibit O and required to be included with each Form 10-K pursuant to the
Xxxxxxxx-Xxxxx Act of 2002, as amended (with an original executed hard copy of
each to follow by overnight mail) to the Securities Administrator. If a Form
10-K cannot be filed on time or if a previously filed Form 10-K needs to be
amended, the Securities Administrator will follow the procedures set forth in
Section 3.22(e). Promptly (but no later than one Business Day) after filing with
the Securities and Exchange Commission, the Securities Administrator will make
available on its internet website a final executed copy of each Form 10-K. The
parties to this Agreement acknowledge that the performance by the Securities
Administrator of its duties under this Section 3.22(c) related to the timely
preparation and filing of Form 10-K is contingent upon such parties (and any
Additional Servicer or Servicing Function Participant) strictly observing all
applicable deadlines in the performance of their duties under this Section 3.22,
Section 3.19 and Section 3.20. The Securities Administrator shall have no
liability for any loss, expense, damage, claim arising out of or with respect to
any failure to properly prepare and/or timely file such Form 10-K, where such
failure results from the Securities Administrator's inability or failure to
obtain or receive, on a timely basis, any information from any party hereto
(other than the Securities Administrator or any Servicing Function Participant
utilized by the Securities Administrator) needed to prepare, arrange for
execution or file such Form 10-K, not resulting from its own negligence, bad
faith or willful misconduct.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, the Securities Administrator shall provide to the Master
Servicer, on or before March 5th of each year, or if such day is not a Business
Day the next Business Day (with a ten calendar day cure period), followed by a
hard copy within ten days, commencing in March 20___, and otherwise within a
reasonable period of time upon request, a certification in the form attached
hereto as Exhibit P. In the event the Securities Administrator is terminated or
resigns pursuant to the terms of this Agreement, such Securities Administrator
shall provide a certification in the form attached hereto as Exhibit P with
respect to the period of time it was subject to this Agreement. In addition, the
Securities Administrator shall indemnify and hold harmless the Depositor, the
Master Servicer, the Trustee, the Sponsor and their officers, directors and
affiliates from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other costs
and expenses arising out of or based upon any inaccuracy in (i) the assessment
of compliance with the Servicing Criteria
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pursuant to Section 3.20 provided by the Securities Administrator or any
Servicing Function Participant appointed by the Securities Administrator and
(ii) the certification provided by the Securities Administrator pursuant to this
Section 3.22(c), any breach of the obligations under Sections 3.19 and 3.22(c)
of the Securities Administrator or any Servicing Function Participant appointed
by the Securities Administrator or the Securities Administrator's or such
Servicing Function Participant'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, the Master Servicer, the
Trustee, the Sponsor and their officers, directors and affiliates in such
proportion as is appropriate to reflect the relative fault of the Depositor, the
Master Servicer, the Trustee, the Sponsor and each of their officers, directors
and affiliates on the one hand and the Securities Administrator on the other in
connection with a breach of the Securities Administrator's obligations under
this Section 3.22(c) or the Securities Administrator's negligence, bad faith or
willful misconduct in connection therewith.
(d) 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 the
Servicer to provide the certification required pursuant to the Servicing
Agreement.
(e) Within four (4) Business Days after the occurrence of an
event requiring disclosure on Form 8-K (each such event, a "Reportable Event"),
and also if requested by the Depositor, the Securities Administrator shall
prepare and file on behalf of the Trust any Form 8-K, as required by the
Exchange Act, provided that the Depositor shall file the initial Form 8-Ks in
connection with the issuance of the Certificates. Any disclosure or information
related to a Reportable Event or that is otherwise required to be included on
Form 8-K (such information, "Form 8-K Information") shall be reported to the
Depositor, the Trustee and the Securities Administrator by the parties set forth
on Exhibit R-3 hereto and compiled by the Securities Administrator pursuant to
the following paragraph. The Securities Administrator will have no duty or
liability for any failure hereunder to determine or prepare any Form 8-K
Information or any Form 8-K, except to the extent of its obligations as set
forth in the next paragraph.
As set forth on Exhibit R-3 hereto, for so long as the Trust is
subject to the Exchange Act reporting requirements, no later than 12:00 noon on
the second Business Day after the occurrence of a Reportable Event certain
parties to this Agreement shall be required to provide to the Depositor, the
Securities Administrator and the Trustee, to the extent known by such applicable
parties, any Form 8-K Information, if applicable. The Depositor will be
responsible for all reasonable fees and expenses assessed or incurred by the
Securities Administrator in connection with including any Form 8-K Information
on Form 8-K pursuant to this paragraph, including converting any such disclosure
to an XXXXX-compatible format.
After preparing the Form 8-K, the Securities Administrator shall
forward electronically a draft copy of the Form 8-K to the Depositor for review,
verification and execution by the Depositor. No later than 12:00 noon on the
fourth Business Day after the Reportable Event, an officer of the Depositor
shall sign the Form 8-K and return an electronic or fax copy of such signed Form
8-K (with an original executed hard copy to follow by overnight mail) to the
Securities Administrator. Promptly (but no later than one Business Day) after
filing with the Securities and Exchange Commission, the Securities Administrator
will make available on its internet website a final executed copy of each Form
8-K filed by it. If a
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Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be
amended, the Securities Administrator will follow the procedures set forth in
Section 3.22(f). The Depositor acknowledges that the performance by the
Securities Administrator of its duties under this Section 3.22(e) related to the
timely preparation and filing of Form 8-K is contingent upon the parties to this
Agreement and any other Person obligated to provide Form 8-K Information as set
forth on Exhibit R-3 hereto observing all applicable deadlines in the
performance of their duties under this Section 3.22(e). The Securities
Administrator shall have no liability for any loss, expense, damage or claim
arising out of or with respect to any failure to properly prepare and/or timely
file such Form 8-K, where such failure results from the Securities
Administrator's inability or failure to obtain or receive, on a timely basis,
any information from any party hereto (other than the Securities Administrator
or any Servicing Function Participant utilized by the Securities Administrator)
needed to prepare, arrange for execution or file such Form 8-K, not resulting
from its own negligence, bad faith or willful misconduct.
(f) In the event that the Securities Administrator is unable to
timely file with the Securities and Exchange Commission all or any required
portion of any Form 8-K, Form 10-D or Form 10-K required to be filed by this
Agreement because required information was either not delivered to it or
delivered to it after the delivery deadlines set forth in this Agreement or for
any other reason, the Securities Administrator will immediately notify the
Depositor and the Master Servicer by telephone. In the case of Form 10-D and
Form 10-K, the Depositor, Master Servicer, Securities Administrator and Trustee
will cooperate to prepare and file a Form 12b-25 pursuant to Rule 12b-25 of the
Exchange Act. In the case of Form 8-K, the Securities Administrator will, upon
receipt of all information required to be included on Form 8-K, file such Form
8-K. Within five calendar days following the original due date of the Form 10-D,
the Securities Administrator shall prepare and file the related Form 10-D.
Within 15 calendar days following the original due date of the Form 10-K, the
Securities Administrator shall prepare and file the related Form 10-K. In the
event that any previously filed Form 8-K, Form 10-D or Form 10-K needs to be
amended, the party to this Agreement deciding that an amendment to such Form
8-K, Form 10-D or Form 10-K is required will notify the Depositor, the Trustee,
the Securities Administrator and the Master Servicer and such parties will
cooperate to prepare any necessary Form 8-K/A, Form 10-D/A or Form 10-K/A. Any
Form 12b-25 or any amendment to Form 10-D or Form 10-K shall be signed by a
senior officer of the Master Servicer in charge of the servicing function. Any
amendment to Form 8-K or any Form 15 (as described in Section 3.22(h)) shall be
signed by an officer of the Depositor. The Depositor and Master Servicer
acknowledge that the performance by the Securities Administrator of its duties
under this Section 3.22(f) related to the timely preparation and filing of a
Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K is contingent
upon the Master Servicer and the Depositor performing their duties under this
Section. The Securities Administrator shall have no liability for any loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare and/or timely file any such Form 12b-25 or any amendments to Form 8-K,
Form 10-D or Form 10-K, where such failure results from the Securities
Administrator's inability or failure to obtain or receive, on a timely basis,
any information from any other party hereto (other than the Securities
Administrator or any Servicing Function Participant utilized by the Securities
Administrator) needed to prepare, arrange for execution or file such Form 12b-25
or any amendments to Form 8-K, Form 10-D or Form 10-K, not resulting from its
own negligence, bad faith or wilful misconduct.
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(g) Upon any filing with the Securities and Exchange Commission,
the Securities Administrator shall promptly deliver or otherwise make available
to the Depositor a copy of any such executed report, statement or information.
(h) The obligations set forth in paragraphs (a) through (g) of
this Section shall only apply with respect to periods for which the Securities
Administrator is obligated to file reports on Form 8-K, 10-D or 10-K. Unless
otherwise instructed by the Depositor, prior to January 30th of the first year
in which the Securities Administrator is permitted to do so under Section 15(d)
of the Exchange Act and other applicable law and regulations, the Securities
Administrator shall prepare and file with the Securities and Exchange Commission
a Form 15 Suspension Notification with respect to the Trust, with a copy to the
Depositor. At any time after the filing of a Form 15 Suspension Notification, if
the number of Certificateholders of record exceeds the number set forth in
Section 15(d) of the Exchange Act or the regulations promulgated pursuant
thereto which would cause the Trust to again become subject to the reporting
requirements of the Exchange Act, the Securities Administrator shall recommence
preparing and filing reports on Form 10-D and 10-K as required pursuant to this
Section and the parties hereto will again have the obligations set forth in
paragraphs (a) through (g) of this Section.
(i) The Depositor, the Securities Administrator, the Trustee and
the Master Servicer shall notify the Depositor and the Trustee of any
proceedings of the type described in Item 1117 of Regulation AB, together with a
description thereof, within five Business Days of any such party's knowledge
thereof. In addition, the Depositor, the Securities Administrator, the Trustee
and the Master Servicer shall notify the Depositor and the Trustee of any
affiliations or relationships that develop following the Closing Date between
the Depositor, the Securities Administrator, the Trustee or the Master Servicer
and any of parties listed in Item 1119 of Regulation AB, together with a
description thereof, within five Business Days of any such party's knowledge
thereof.
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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 based solely on information
provided by the Servicer (in substance and format mutually acceptable to the
Master Servicer and the Securities Administrator) certified by a Master
Servicing Officer of the Master Servicer setting forth the information necessary
in order for the Securities Administrator to perform its obligations under this
Agreement. The Securities Administrator may conclusively rely upon the
information contained in a Master Servicer's Certificate delivered by the Master
Servicer for all purposes hereunder and shall have no duty to verify or
re-compute any of the information contained therein.
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01. Distributions. On each Distribution Date, based solely
on the information in the Master Servicer's Certificate, the Securities
Administrator shall distribute or be deemed to distribute, as applicable, out of
the Distribution Account (to the extent funds are available therein) to each
Certificateholder of record on the related Record Date (other than as provided
in Section 10.01 respecting the final distribution) (a) by check mailed to such
Certificateholder entitled to receive a distribution on such Distribution Date
at the address appearing in the Certificate Register, or (b) upon written
request by the Holder of a Certificate (other than the Residual Certificate), by
wire transfer or by such other means of payment as such Certificateholder and
the Securities Administrator shall agree upon, such Certificateholder's
Percentage Interest in the amount to which the related Class of Certificates is
entitled in accordance with the priorities set forth below in Section 5.02.
None of the Holders of any Class of Certificates, the Depositor, the
Master Servicer, the Securities Administrator or the Trustee shall in any way be
responsible or liable to Holders of any Class of Certificates in respect of
amounts properly previously distributed on any such Class.
Amounts distributed with respect to any Class of Certificates shall
be applied first to the distribution of interest thereon and then to principal
thereon.
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 Distribution Account (to the extent funds are available
therein) (1) to the extent not previously
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paid, the amounts payable to the Securities Administrator and the Trustee
pursuant to Sections 3.11(a)(ii) and shall pay such funds to itself and the
Trustee, as applicable, and (2) the Pool Distribution Amount (after the payment
of the Servicing Fees and the LPMI Policy premium rate, if any, for such
Mortgage Loans and expenses and indemnities reimbursable pursuant to this
Agreement, in each case to the extent not previously retained by or distributed
to the Servicer, the Securities Administrator, the Master Servicer or the
Trustee), and shall apply such funds first to pay the Trustee the Trustee Fee
for such Distribution Date and second to distributions to the Certificates in
the following order of priority:
(i) to each Class of Senior Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class and any
shortfall being allocated among such Classes in proportion to the amount
of the Interest Distribution Amount that would have been distributed in
the absence of such shortfall;
(ii) concurrently to the Senior Certificates, pro rata, based on
their respective Senior Principal Distribution Amount and PO Principal
Amount, (A) to the Senior Certificates in an aggregate amount up to the
Senior Principal Distribution Amount, such distribution to be allocated
among such Classes in accordance with Section 5.02(b) and (B) to the Class
A-PO Certificates in an aggregate amount up to the PO Principal Amount;
(iii) to the Class A-PO Certificates, any Class PO Deferred Amount
(after giving effect to the distribution to the Class A-PO Certificates of
the Class PO Recovery), up to the Subordinate Principal Distribution
Amount for such Distribution Date from amounts otherwise distributable,
first, to the Class B Certificates, 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 PO Deferred Amounts 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;
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(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 PO Deferred Amounts 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 PO Deferred Amounts 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 PO Deferred Amounts 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 PO Deferred Amounts 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 PO Deferred Amounts pursuant
to clause (iii) above until the Class Certificate Balance thereof
has been reduced to zero; and
(v) to the Holder of the Class A-R Certificate, any remaining
Pool Distribution Amount.
No Class of Certificates will be entitled to any distributions with
respect to the amount payable pursuant to clause (ii) of the definition of
"Interest Distribution Amount" after its Class Certificate Balance has been
reduced to zero.
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On any Distribution Date, amounts distributed in respect of the
Class PO Deferred Amounts (including the distribution of the Class PO
Recoveries) will not reduce the Class Certificate Balance of the Class A-PO
Certificates.
All distributions in respect of the Interest Distribution Amount for
a Class will be applied first with respect to the amount payable pursuant to
clause (i) of the definition of "Interest Distribution Amount," and second with
respect to the amount payable pursuant to clause (ii) of such definition.
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 Pool Distribution Amount.
On each Distribution Date, the Securities Administrator shall
distribute any Class PO Recovery to the Holders of the Class A-PO Certificates.
In the event that on any Distribution Date, the Subordinate
Principal Distribution Amounts is insufficient to reduce the Class PO Deferred
Amounts of the Class A-PO Certificates to zero, the amount that is available
shall be distributed to such Class.
(b) On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Senior Certificates pursuant to
Section 5.02(a)(ii)(A) for such Distribution Date, will be distributed,
sequentially, as follows:
first, to the Class A-R Certificate, until its Class Certificate
Balance has been reduced to zero; and
second, to the Class A-1 Certificates, until their Class Certificate
Balance has been reduced to zero.
On each Distribution Date on or after the Senior Credit Support
Depletion Date, notwithstanding the allocation and priority set forth above, the
portion of the Pool Distribution Amount available to be distributed as principal
of the Senior Certificates shall be distributed concurrently, as principal, on
such Classes, pro rata, on the basis of their respective Class Certificate
Balances, until the Class Certificate Balances thereof are reduced to zero.
The PO Deferred Amounts for the Class A-PO Certificates will be paid
from amounts otherwise distributable as principal on the Subordinate
Certificates before any payments are made pursuant to the preceding paragraph.
(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
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Date, any other Realized Loss on the Mortgage Loans allocable to interest and
(C) Relief Act Reductions incurred on the Mortgage Loans during the Prior
Period.
(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 Pool Stated Principal Balance (Non-PO Portion) immediately
prior to such Distribution Date (for each Class, the "Fractional Interest") is
less than the Original Fractional Interest for such Class, no distribution of
principal will be made to any Classes of Subordinate Certificates junior to such
Class (the "Restricted Classes") and the Class Certificate Balances of the
Restricted Classes of Subordinate Certificates will not be used in determining
the Pro Rata Share for the Subordinate Certificates that are not Restricted
Classes. If the aggregate Class Certificate Balances of the Subordinate
Certificates that are not Restricted Classes are reduced to zero,
notwithstanding the previous sentence, any funds remaining will be distributed
sequentially to the Subordinate Certificates that are Restricted Classes in
order of their respective numerical Class designations (beginning with the Class
of Subordinate Certificates that is a Restricted Class then outstanding with the
lowest numerical Class designation).
Section 5.03. Allocation of Losses.
(a) No later than five (5) Business Days prior to the related
Distribution Date, the Master Servicer shall inform the Securities Administrator
in writing with respect to each Mortgage Loan: (1) whether any Realized Loss is
a Deficient Valuation 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. Based on such
information, the Securities Administrator shall determine the total amount of
Realized Losses on the Mortgage Loans with respect to the related Distribution
Date. Realized Losses shall be allocated to the Certificates by a reduction in
the Class Certificate Balance of the designated Classes pursuant to the
operation of Section 5.03(b).
(b) The Class Certificates Balance of the Class A-PO
Certificates shall be reduced on each Distribution Date by the amount, if any,
by which the Class Certificate Balance of the Class A-PO Certificates (after
giving effect to the amounts to be distributed as a distribution of principal on
such Distribution Date) exceeds the Adjusted Pool Amount (PO Portion) for such
Distribution Date. The Class Certificate Balance of the Subordinate Certificates
then outstanding with the highest numerical Class designation shall be reduced
or increased on each Distribution Date by the amount, if any, necessary such
that the aggregate of the Class Certificate Balances of all outstanding Classes
of Certificates (other than the Class A-PO Certificates) (after giving effect to
the amount to be distributed as a distribution of principal and the allocation
of the Class PO Deferred Amounts on such Distribution Date) equals the Adjusted
Pool Amount (Non PO Portion) for such Distribution Date.
After the applicable Senior Credit Support Depletion Date, the Class
Certificate Balances of the Senior Certificates in the aggregate shall be
reduced or increased on each Distribution Date by the amount, if any, necessary
such that the aggregate of the Class
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Certificate Balances of all outstanding Classes of Senior Certificates (after
giving effect to the amount to be distributed as a distribution of principal on
such Distribution Date) equals the Adjusted Pool Amount (Non-PO Portion) for
such Distribution Date.
Any such reduction or increase shall be allocated among the Senior
Certificates based on the Class Certificate Balances immediately prior to such
Distribution Date until the Class Certificate Balances thereof have been reduced
to zero.
(c) Any reduction or increase 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 Subordinate 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 Subordinate 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 then
outstanding with the lowest numerical designation) until the respective Class
Certificate Balance of each such Class is reduced to zero and then to the Senior
Certificates, pro rata, in accordance with the priorities set forth in Section
5.02.
(e) Notwithstanding any other provision of this Section 5.03, no
Class Certificate Balance of a Class will be increased on any Distribution Date
such that the Class Certificate Balance of such Class exceeds its Initial Class
Certificate Balance less all distributions of principal previously distributed
in respect of such Class on prior Distribution Dates (excluding in the case of
any Class of Subordinate Certificates any principal otherwise payable to such
Class of Subordinate Certificates but used to pay any Class PO Deferred Amount).
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
Certificate delivered to the Securities Administrator pursuant to Section 4.01
and with respect to subsections (xxi) and (xxii) below, after consultation with
the Depositor, the Securities Administrator shall determine the following
information with respect to such Distribution Date:
(i) the date of such Distribution Date and the Determination
Date for such Distribution Date;
(ii) for each Class, the applicable Record Date and Interest
Accrual Period;
(iii) the amount allocable to principal, separately identifying
the aggregate amount of any Principal Prepayments and Liquidation Proceeds
included therein;
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(iv) 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;
(v) 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;
(vi) the Class Certificate Balance of each Class of Certificates
prior to and after giving effect to the distribution of principal on such
Distribution Date;
(vii) the Pool Stated Principal Balance for the following
Distribution Date;
(viii) (A) the Senior Percentage, the Senior Prepayment Percentage,
the Subordinate Percentage and the Subordinate Prepayment Percentage for
such Distribution Date and (B) the Senior Percentage, the Senior
Prepayment Percentage, the Subordinate Percentage and the Subordinate
Prepayment Percentage for the following Distribution Date;
(ix) the amount of the Servicing Fee paid to or retained by the
Servicer, and the amount of the Trustee Fee paid to the Trustee, with
respect to such Distribution Date;
(x) the Pass-Through Rate for each such Class of Certificates
with respect to such Distribution Date;
(xi) the amount of Periodic Advances included in the distribution
on such Distribution Date, the aggregate amount of Periodic Advances
outstanding as of the close of business on such Distribution Date and the
amount of Periodic Advances reimbursed since the previous Distribution
Date;
(xii) the amount of Servicing Advances made since the previous
Distribution Date and the aggregate amount of Servicing Advances
outstanding as of the close of business on such Distribution Date;
(xiii) the number and aggregate Stated Principal Balance of the
Mortgage Loans, the Net WAC, the ranges of Mortgage Interest Rates for the
Mortgage Loans, separated by 0.25%, the weighted average remaining term to
maturity of the Mortgage Loans and the cumulative amount of Principal
Prepayments, each as of the close of business on the last day of the
calendar month preceding such Distribution Date;
(xiv) the number and aggregate principal amounts of Mortgage Loans
(A) delinquent (exclusive of Mortgage Loans in foreclosure or bankruptcy)
in 30-day increments until foreclosure or other disposition, (B) in
foreclosure, as of the close of business on the last day of the calendar
month preceding such Distribution Date and (C) in bankruptcy, as of the
close of business on the last day of the calendar month preceding such
Distribution Date;
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(xv) 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;
(xvi) 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;
(xvii) the aggregate amount of Realized Losses incurred during the
preceding calendar month and for any Class PO Deferred Amounts for such
Distribution Date;
(xviii) the Reimbursement Amount;
(xix) the amount of total Recoveries, the Class PO Recovery and
the Non-PO Recovery allocated to the Class A-PO Certificates;
(xx) any expenses or indemnification amounts paid by the Trust,
the specific purpose of each payment and the parties to whom such payments
were made;
(xxi) any material modifications, extensions or waivers as to
Mortgage Loan terms, fees, penalties or payments since the previous
Distribution Date and cumulatively since the Cut-off Date;
(xxii) unless such information is set forth in the Form 10-D
relating to such Distribution Date and provided the Securities
Administrator is reasonably able to include such information on the
statement, any material breaches of representations and warranties
relating to the Mortgage Loans and any material breach of covenants
hereunder; and
(xxiii) the number and aggregate principal balance of any Mortgage
Loans repurchased by the Depositor from the Trust since the previous
Distribution Date.
(b) No later than each Distribution Date, the Securities
Administrator, based upon information supplied to it on the Master Servicer's
Certificate, shall make available to each Holder of a Certificate, each Rating
Agency and the Master Servicer a statement setting forth the information set
forth in Section 5.04(a).
In the case of information furnished pursuant to clauses (iii) and
(iv) 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.
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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, initially located at "www.[insert website
address]." The Securities Administrator will also make available copies of
periodic reports the Securities Administrator files with the Securities and
Exchange Commission, including distribution reports on Form 10-D, annual reports
on Form 10-K, current reports on Form 8-K and amendments to these reports,
available through this website promptly (but no later than one Business Day)
after they are filed with the Securities and Exchange Commission. Assistance in
using the website can be obtained by calling the Securities Administrator's
customer service desk at [insert phone number]. Parties that are unable to use
the website are entitled to have a paper copy mailed to them via first class
mail by calling the customer service desk and indicating such. The Securities
Administrator shall have the right to change the way the monthly statements to
Certificateholders are distributed in order to make such distribution more
convenient and/or more accessible to the above parties and the Securities
Administrator shall provide timely and adequate notification to all above
parties regarding any such changes.
Within a reasonable period of time after the end of each calendar
year, the Securities Administrator shall furnish to each Person who at any time
during the calendar year was the Holder of a Certificate, if requested in
writing by such Person, a statement containing the information set forth in
clauses (iii), (iv) and (ix) 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
Holder of the Residual Certificate for quarterly notices on Schedule Q (Form
1066) (which information shall be forwarded to the Holder of the Residual
Certificate by the Securities Administrator), (ii) information to be provided to
the Holders of Certificates with respect to amounts which should be included as
interest and original issue discount in such Holders' gross income and (iii)
information to be provided to all Holders of Certificates setting forth the
percentage of the REMIC's assets, determined in accordance with Treasury
Regulations using a convention, not inconsistent with Treasury Regulations,
selected by the Securities Administrator in its absolute discretion, that
constitute real estate assets under Section 856 of the Code, and assets
described in Section 7701(a)(19)(C) of the Code; provided, however, that in
setting forth the percentage of such assets of the REMIC, nothing contained in
this Agreement, including without limitation Section 7.03 hereof, shall be
interpreted to require the Securities Administrator periodically to appraise the
fair market values of the assets of the Trust Estate or to indemnify the Trust
Estate or any Certificateholders from any adverse
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federal, state or local tax consequences associated with a change subsequently
required to be made in the Depositor's initial good faith determinations of such
fair market values (if subsequent determinations are required pursuant to the
REMIC Provisions) made from time to time.
Section 5.05. Tax Returns and Reports to Certificateholders.
(a) For federal income tax purposes, the REMIC shall have a
calendar year taxable year and shall maintain its books on the accrual method of
accounting.
(b) The Securities Administrator shall prepare or cause to be
prepared, shall cause to be timely signed by the Trustee, and shall file or
cause to be filed with the Internal Revenue Service and applicable state or
local tax authorities income tax information returns for each taxable year with
respect to the REMIC containing such information at the times and in the manner
as may be required by the Code, the Treasury Regulations or state or local tax
laws, regulations, or rules, and shall furnish or cause to be furnished to the
REMIC and the Certificateholders the schedules, statements or information at
such times and in such manner as may be required thereby. Within 30 days of the
Closing Date, the Securities Administrator shall obtain a taxpayer
identification number on Form SS-4 or as otherwise permitted by the Internal
Revenue Service, and shall furnish or cause to be furnished to the Internal
Revenue Service, on Form 8811 or as otherwise required by the Code or the
Treasury Regulations, the name, title, address and telephone number of the
person that Holders of the Certificates may contact for tax information relating
thereto, together with such additional information at the time or times and in
the manner required by the Code or the Treasury Regulations. Such federal,
state, or local income tax or information returns shall be signed by the
Trustee, or such other Person as may be required to sign such returns by the
Code, the Treasury Regulations or state or local tax laws, regulations, or
rules.
(c) In the first federal income tax return of the REMIC for its
short taxable year ending _______ ___, 20__, REMIC status shall be elected for
such taxable year and all succeeding taxable years.
(d) The Securities Administrator will maintain or cause to be
maintained such records relating to the REMIC, including but not limited to
records relating to the income, expenses, assets and liabilities of the Trust
Estate, and the initial fair market value and adjusted basis of the Trust Estate
property and assets determined at such intervals as may be required by the Code
or the Treasury Regulations, as may be necessary to prepare the foregoing
returns, schedules, statements or information.
Section 5.06. Tax Matters Person. The Tax Matters Person shall have
the same duties with respect to the REMIC as those of a "tax matters partner"
under Subchapter C of Chapter 63 of Subtitle F of the Code. The Holder of the
Class A-R Certificate is hereby designated as the Tax Matters Person for the
REMIC. By its acceptance of the Class A-R Certificate such Holder irrevocably
appoints the Securities Administrator as its agent to perform all of the duties
of the Tax Matters Person for the REMIC.
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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 REMIC
created hereunder shall exist, the Trustee, the Securities Administrator, the
Depositor and the Master Servicer shall act in accordance herewith to assure
continuing treatment of the REMIC created hereunder as a REMIC and avoid the
imposition of tax on the REMIC created hereunder. In particular:
(a) Neither the Securities Administrator nor the Trustee shall
create, or permit the creation of, any "interests" in the REMIC created
hereunder within the meaning of Code Section 860D(a)(2) other than the interests
represented by the Regular Certificates and the Residual Certificate.
(b) Except as otherwise provided in the Code, (i) the Depositor
and the Master Servicer shall not contribute to the Trust Estate and the Trustee
shall not accept property unless substantially all of the property held in the
REMIC constitutes either "qualified mortgages" or "permitted investments" as
defined in Code Sections 860G(a)(3) and (5), respectively, and (ii) no property
shall be contributed to the REMIC after the start-up day unless such
contribution would not subject the Trust Estate to the 100% tax on contributions
to a REMIC after the start-up day of the REMIC imposed by Code Section 860G(d).
(c) The Securities Administrator, on behalf of the Trustee,
shall not accept on behalf of the REMIC any fee or other compensation for
services and none of the Securities Administrator, the Trustee or the 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, 2.04 or 3.01),
unless such sale is pursuant to a "qualified liquidation" of the REMIC as
defined in Code Section 860F(a)(4)(A) and in accordance with Article X.
(e) The Securities Administrator shall maintain books with
respect to the Trust and the REMIC on a calendar year taxable year and on an
accrual basis.
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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 the REMIC created hereunder and will not disqualify the
Trust Estate 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 X-0, X-XX, X-X, 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 Classes of Certificates shall be
available to investors in minimum denominations of initial Certificate Balance
(or initial Notional Amount) and integral multiples in excess thereof set forth
in the Preliminary Statement. The Senior Certificates (other than the Class A-R
Certificate) and the Class B-1, Class B-2, and Class B-3 Certificates shall
initially be issued in book-entry form through the Depository and delivered to
the Depository or, pursuant to the Depository's instructions on behalf of the
Depository to, and deposited with, the Certificate Custodian, and all other
Classes of Certificates shall initially be issued in definitive,
fully-registered form.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Securities Administrator by an authorized officer or signatory.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures were affixed, authorized to sign on behalf of
the Securities Administrator shall bind the Securities Administrator,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the execution and delivery of such Certificates or did not
hold such offices or positions at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless such Certificate shall have been manually authenticated by the
Securities Administrator substantially in the form provided for herein, and such
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
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Section 6.02. Registration of Transfer and Exchange of Certificates.
(a) The Securities Administrator shall cause to be kept at an
office or agency in the city in which the Corporate Trust Office of the
Securities Administrator is located a Certificate Register in which, subject to
such reasonable regulations as it may prescribe, the Securities Administrator
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. The Securities Administrator shall
initially serve as Certificate Registrar for the purpose of registering
Certificates and transfers and exchanges of Certificates as herein provided.
(b) At the option of the Certificateholders, Certificates may be
exchanged for other Certificates of authorized denominations of a like Class,
tenor and aggregate Percentage Interest, upon surrender of the Certificates to
be exchanged at any such office or agency. Whenever any Certificates are so
surrendered for exchange, the Securities Administrator shall execute and the
Securities Administrator shall authenticate and deliver the Certificates which
the Certificateholder making the exchange is entitled to receive. Every
Certificate presented or surrendered for transfer or exchange shall (if so
required by the Securities Administrator or the Certificate Registrar) be duly
endorsed by, or be accompanied by a written instrument of transfer in form
satisfactory to the Securities Administrator and the Certificate Registrar duly
executed by, the Holder thereof or its attorney duly authorized in writing.
(c) (i) Except as provided in paragraph (c)(iii) below, the
Book-Entry Certificates shall at all times remain registered in the name of the
Depository or its nominee and at all times: (A) registration of the Book Entry
Certificates may not be transferred by the Securities Administrator except to
another Depository; (B) the Depository shall maintain book-entry records with
respect to the Certificate Owners and with respect to ownership and transfers of
such Book-Entry Certificates; (C) ownership and transfers of registration of the
Book-Entry Certificates on the books of the Depository shall be governed by
applicable rules established by the Depository; (D) the Depository may collect
its usual and customary fees, charges and expenses from its Depository
Participants; (E) the Securities Administrator shall deal with the Depository as
the representative of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of Holders under this Agreement, and requests
and directions for and votes of the Depository shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(F) the Securities Administrator may rely and shall be fully protected in
relying upon information furnished by the Depository with respect to its
Depository Participants and furnished by the Depository Participants with
respect to indirect participating firms and persons shown on the books of such
indirect participating firms as direct or indirect Certificate Owners.
(ii) All transfers by Certificate Owners of Book-Entry
Certificates shall be made in accordance with the procedures established
by the Depository Participant or brokerage firm representing such
Certificate Owner. Each Depository Participant shall only transfer
Book-Entry Certificates of Certificate Owners it represents or of
brokerage firms for which it acts as agent in accordance with the
Depository's normal procedures.
(iii) If the Depository advises the Securities Administrator in
writing that the Depository is no longer willing or able to properly
discharge its responsibilities as Depository, and the Securities
Administrator or the Depositor is unable to locate a
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qualified successor, the Securities Administrator shall notify all
Certificate Owners, through the Depository, of the occurrence of such
event and of the availability of definitive, fully-registered Certificates
(the "Definitive Certificates") to 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 Sponsor, their affiliates or both. The Depositor shall provide to
any Holder of a Private Certificate and any prospective transferees designated
by any such Holder, information regarding the related Certificates and the
Mortgage Loans and such other information as shall be necessary to satisfy the
condition to eligibility set forth in Rule 144A(d)(4) for transfer of any such
certificate without registration thereof under the 1933 Act pursuant to the
registration exemption provided by Rule 144A. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Securities Administrator and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
(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
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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 to the effect that the purchase or
holding of such ERISA Restricted Certificate by or on behalf of such Plan will
not constitute or result in a non exempt prohibited transaction within the
meaning of ERISA, Section 4975 of the Code or Similar Law and will not subject
the Trustee, the Depositor, 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 of an Opinion of Counsel satisfactory to the
Securities Administrator as described above shall be void and of no effect.
Neither the Securities Administrator nor the Certificate Registrar
shall have any liability for transfers of Book-Entry Certificates made through
the book-entry facilities of the Depository or between or among any Depository
Participants or Certificate Owners, made in violation of applicable
restrictions. The Securities Administrator may rely and shall be fully protected
in relying upon information furnished by the Depository with respect to its
Depository Participants and furnished by the Depository Participants with
respect to indirect participating firms and Persons shown on the books of such
indirect participating firms as direct or indirect Certificate Owners.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Securities Administrator shall be under no liability to
any Person for any registration of transfer of any ERISA Restricted Certificate
that is in fact not permitted by this Section 6.02 or for making any payments
due on such Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
transfer was registered by the Securities Administrator in accordance with the
foregoing requirements.
(f) Each Person who has or who acquires any Ownership Interest
in the Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions,
and the rights of each Person acquiring any Ownership Interest in the Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in
the Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Securities
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Administrator of any change or impending change in its status as a
Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in the
Residual Certificate unless such Ownership Interest is a pro rata
undivided interest.
(iii) In connection with any proposed transfer of any Ownership
Interest in the Residual Certificate, the Securities Administrator shall
require delivery to it, in form and substance satisfactory to it, of an
affidavit 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
the Residual Certificate to such proposed transferee shall be effected.
(v) No Ownership Interest in the Residual Certificate may be
purchased by or transferred to any Person that is not a U.S. Person,
unless (A) such Person holds 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 the
Residual Certificate will not be disregarded for federal income tax
purposes.
(vi) Any attempted or purported transfer of any Ownership
Interest in the Residual Certificate in violation of the provisions of
this Section 6.02 shall be absolutely null and void and shall vest no
rights in the purported transferee. If any purported transferee shall, in
violation of the provisions of this Section 6.02, become a Holder of the
Residual Certificate, then the prior Holder of 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 the 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
the 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.
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(vii) If any Person other than a Permitted Transferee acquires any
Ownership Interest in the Residual Certificate in violation of the
restrictions in this Section 6.02, then the Securities Administrator,
based on information provided to the Securities Administrator by the
Master Servicer, will provide to the Internal Revenue Service, and to the
Persons specified in Section 860E(e)(3) and (6) of the Code, information
needed to compute the tax imposed under Section 860E(e) of the Code on
transfers of residual interests to disqualified organizations. The
expenses of the Securities Administrator under this clause (vii) shall be
reimbursable by the Trust.
(viii) No Ownership Interest in the Residual Certificate shall be
acquired by a Plan 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
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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 (a) the successor or surviving Person
to the Master Servicer shall be qualified to service mortgage loans on behalf of
Xxxxxx Xxx or Xxxxxxx Mac and (b) the Master Servicer and such successor or
surviving Person shall notify the Depositor, the Securities Administrator and
the Trustee of any such merger, conversion or consolidation at least two
Business Days prior to the effective date thereof and shall provide the
Depositor, the Securities Administrator and the Trustee with all information
required by the Depositor to comply with its reporting obligation under Item
6.02 of Form 8-K not later than the effective date of such merger, conversion or
consolidation.
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
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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 shall be
entitled to be reimbursed therefor out of amounts attributable to the Mortgage
Loans on deposit in the Distribution Account as provided by Section 3.11 and the
Master Servicer shall be entitled to be reimbursed therefor out of amounts on
deposit in the Master Servicer Custodial Account.
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 or, in the case of the Master Servicer, pursuant to Section
7.05. 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.
Section 7.05. Assignment or Delegation of Duties by the Master
Servicer. The Master Servicer shall have the right to assign its rights and
delegate its duties and obligations hereunder; provided, however, that (i) the
purchaser or transferee accepting such assignment or delegation is qualified to
service mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac, is satisfactory to the
Trustee, in the exercise of its reasonable judgment, and executes and delivers
to the Trustee an agreement, in form and substance reasonably satisfactory to
the Trustee, which contains an assumption by such purchaser or transferee of the
due and punctual performance and observance of each covenant and condition to be
performed or observed by the Master Servicer hereunder from and after the date
of such agreement; and (ii) each applicable Rating Agency's rating of any
Certificates in effect immediately prior to such assignment, sale or transfer is
not reasonably likely to be qualified, downgraded or withdrawn as a result of
such
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assignment, sale or transfer and the Certificates are not reasonably likely to
be placed on credit review status by any such Rating Agency. In no case,
however, shall any permitted assignment and delegation relieve the Mater
Servicer of any liability to the Trustee or the Depositor under this Agreement,
incurred by it prior to the time that the conditions contained in clauses (i)
and (ii) above are met.
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 remit amounts to the
Securities Administrator for deposit into the Distribution Account in the amount
and manner provided herein so as to enable the Securities Administrator to
distribute to Holders of Certificates any payment required to be made under the
terms of such Certificates and this Agreement which continues unremedied by 3:00
P.M. New York time on the related Distribution Date; or
(b) failure on the part of the Master Servicer duly to observe
or perform in any material respect any other covenants or agreements of the
Master Servicer set forth in the Certificates or in this Agreement, which
covenants and agreements continue unremedied for a period of 30 days after the
date on which written notice of such failure, requiring the same to be remedied,
shall have been given to the Master Servicer by the Securities Administrator,
the Trustee or the Depositor, or to the Master Servicer, the Depositor, the
Securities Administrator and the Trustee by the Holders of Certificates
evidencing Voting Rights aggregating not less than 25% of all Certificates
affected thereby; or
(c) the entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the appointment of
a conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings against the Master
Servicer, or for the winding up or liquidation of the Master Servicer's affairs,
and the continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days;
(d) the consent by the Master Servicer to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
the Master Servicer or of or relating to substantially all of its property; or
the Master Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations; or
(e) the failure of the Master Servicer to remit any Periodic
Advance required to be remitted by the Master Servicer pursuant to Section 3.21,
which failure continues unremedied at 3:00 P.M. on the related Distribution
Date;
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then, and in each and every such case (other than the Event of Default described
in clause (e) hereof), so long as an Event of Default is actually known by the
Trustee or the Depositor and shall not have been remedied by the Master
Servicer, either the Trustee or the Depositor may, and at the direction of the
Holders of Certificates evidencing Voting Rights aggregating not less than 51%
of all Certificates affected thereby shall, by notice then given in writing to
the Master Servicer (and to the Depositor), terminate all of the rights and
obligations of the Master Servicer under this Agreement. If an Event of Default
described in clause (e) hereof shall occur, the Trustee shall, by notice to the
Master Servicer, terminate all of the rights and obligations of the Master
Servicer under this Agreement and in and to the Mortgage Loans and proceeds
thereof (other than the Master Servicer's right to recovery of expenses and
amounts advanced pursuant to the terms of this Agreement, which rights the
Master Servicer will retain under all circumstances) and the Trustee or a
successor Master Servicer appointed pursuant to Section 8.05 shall make the
Advance the which the Master Servicer failed to make. On or after the receipt by
the Master Servicer of such written notice and subject to Section 8.05, all
authority and power of the Master Servicer under this Agreement, whether with
respect to the Certificates or the Mortgage Loans or otherwise, shall pass to
and be vested in the Trustee pursuant to and under this Section 8.01 and Section
8.05(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 applicable Mortgage Loans and
related documents, or otherwise, including, without limitation, the recordation
of the assignments of the applicable Mortgage Loans to it. Any such action taken
by the Trustee must be prior to the distribution on the relevant Distribution
Date. The Master Servicer agrees to cooperate with the Trustee in effecting the
termination of the responsibilities and rights of the Master Servicer hereunder,
including, without limitation, the transfer to the Trustee for the
administration by it of all cash amounts that have been deposited by the Master
Servicer in the Master Servicer Custodial Account or thereafter received by the
Master Servicer with respect to the Mortgage Loans. Upon obtaining notice or
knowledge of the occurrence of any Event of Default, the Person obtaining such
notice or knowledge shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the Certificate
Register and to each Rating Agency. Notwithstanding the termination of the
Master Servicer pursuant hereto, the Master Servicer shall remain liable for any
causes of action arising out of any Event of Default occurring prior to such
termination, subject to the terms and conditions of this Agreement.
Section 8.02. Remedies of Trustee. During the continuance of any
Event of Default, so long as such Event of Default shall not have been remedied,
the Trustee, in addition to the rights specified in Section 8.01, shall have the
right, in its own name as trustee of an express trust, to take all actions now
or hereafter existing at law, in equity or by statute to enforce its rights and
remedies and to protect the interests, and enforce the rights and remedies, of
the Certificateholders (including the institution and prosecution of all
judicial, administrative and other proceedings and the filing of proofs of claim
and debt in connection therewith). Except as otherwise expressly provided in
this Agreement, no remedy provided for by this Agreement shall be exclusive of
any other remedy, and each and every remedy shall be
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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% (or such
other percentage as may be required herein) of each Class of Certificates
affected thereby may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Agreement; provided, however, that
the Trustee shall be under no obligation to pursue any such remedy, or to
exercise any of the trusts or powers vested in it by this Agreement (including,
without limitation, (a) the conducting or defending of any administrative action
or litigation hereunder or in relation hereto, and (b) the terminating of the
Master Servicer or any successor Master Servicer from its rights and duties as
servicer hereunder) at the request, order or direction of any of the
Certificateholders, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity satisfactory to it against the costs,
expenses and liabilities which may be incurred therein or thereby and, provided
further, that, subject to the provisions of Section 9.01, the Trustee shall have
the right to decline to follow any such direction if the Trustee, based upon an
Opinion of Counsel, determines that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith determines that the action or
proceeding so directed would subject the Trustee to a risk of personal liability
or be unjustly prejudicial to the non-assenting Certificateholders.
Section 8.04. Action upon Certain Failures of the Master Servicer
and upon Event of Default. In the event that a Responsible Officer of the
Trustee shall have actual knowledge of any failure of the Master Servicer
specified in Section 8.01(a) or (b) which would become an Event of Default upon
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 in accordance with
Section 8.01.
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Section 8.05. Trustee to Act; Appointment of Successor.
(a) Within 90 days of the time the Master Servicer (and the
Trustee if such notice of termination is delivered by the Depositor) receives a
notice of termination pursuant to Section 8.01, the Trustee (or other named
successor) shall be the successor in all respects to the Master Servicer in its
capacity as master servicer under this Agreement and the transactions set forth
or provided for herein and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Master Servicer by the terms and
provisions hereof and thereof, as applicable, or shall appoint a successor
pursuant to Section 3.07. Notwithstanding the foregoing, (i) the parties hereto
agree that the Trustee, in its capacity as successor Master Servicer,
immediately will assume all of the obligations of the Master Servicer to make
advances (including, without limitation, Advances pursuant to Section 3.21)
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 make advances (including Advances pursuant to Section 3.21) 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, except for those amounts due to the Master
Servicer as reimbursement for advances previously made or amounts previously
expended and are otherwise reimbursable hereunder. Notwithstanding the above,
the Trustee may, if it shall be unwilling so to act, or shall, if it is legally
unable so to act, appoint, or petition a court of competent jurisdiction to
appoint, any established housing and home finance institution having a net worth
of not less than $10,000,000 as the successor to such terminated Master Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of such Master Servicer hereunder; provided, however, that any
such institution appointed as a successor Master Servicer shall not, as
evidenced in writing by each Rating Agency, adversely affect the then current
rating of any Class of Certificates immediately prior to the termination of the
terminated Master Servicer. The appointment of a successor Master Servicer shall
not affect any liability of the predecessor Master Servicer which may have
arisen under this Agreement prior to its termination as Master Servicer, nor
shall any successor Master Servicer be liable for any acts or omissions of the
predecessor Master Servicer or for any breach by such Master Servicer of any of
its representations or warranties contained herein or in any related document or
agreement. Pending appointment of a successor to a terminated Master Servicer
hereunder, unless the Trustee is prohibited by law from so acting, the Trustee
shall act in such capacity as provided above. The Trustee and such successor
shall take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession. All Master Servicing Transfer Costs incurred in
connection with transferring Mortgage Files to the successor Master Servicer and
amending this Agreement to reflect such succession as Master Servicer pursuant
to Section 8.01 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).
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(b) In connection with the appointment of a successor Master
Servicer or the assumption of the duties of the Master Servicer, as specified in
Section 8.05(a), the Trustee may make such arrangements for the compensation of
such successor as it and such successor shall agree; provided, however, that
such compensation shall not exceed the compensation of the Master Servicer being
replaced.
(c) Any successor, including the Trustee, to the Master Servicer
as master servicer shall during the term of its service as master servicer
maintain in force (i) a policy or policies of insurance covering errors and
omissions in the performance of its obligations as master servicer hereunder and
(ii) a fidelity bond in respect of its officers, employees and agents to the
same extent as such Master Servicer is so required pursuant to Section 3.03.
(d) The predecessor Master Servicer and successor Master
Servicer shall notify the Depositor and the Securities Administrator of any such
appointment at least two Business Days prior to the effective date thereof and
shall provide the Depositor and the Securities Administrator with all
information required by the Depositor to comply with its reporting obligation
under Item 6.02 of Form 8-K not later than the effective date of such
appointment.
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
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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
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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
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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
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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 Trustee as the successor to the Master Servicer); the validity
of the assignment of any Mortgage Loan to the Trustee or of any intervening
assignment; the completeness of any Mortgage Loan; the performance or
enforcement of any Mortgage Loan (other than if the Trustee shall assume the
duties of the Master Servicer pursuant to Section 8.05 and thereupon only for
the acts or omissions of the Trustee as successor to the Master Servicer); the
compliance by the Depositor or the Master Servicer with any warranty or
representation made under this Agreement or in any related document or the
accuracy of any such warranty or representation; any investment of monies by or
at the direction of the Master Servicer or any loss resulting therefrom, it
being understood that the Trustee and the Securities Administrator shall remain
responsible for any Trust property that it may hold in its individual capacity;
the acts or omissions of any of the Depositor, the Master Servicer (other than
if the Trustee shall assume the duties of the Master Servicer pursuant to
Section 8.05 and thereupon only for the acts or omissions of the Trustee as
successor to the Master Servicer), or any Mortgagor; any action of the Master
Servicer (other than if the Trustee shall assume the duties of the Master
Servicer pursuant to Section 8.05 and thereupon only for the acts or omissions
of the Trustee as successor to the Master Servicer) taken in the name of the
Securities Administrator; the failure of the Master Servicer to act or perform
any duties required of it as agent of the Trust or the Securities Administrator
hereunder; or any action by the Trustee or the Securities Administrator taken at
the instruction of the Master Servicer (other than if the Trustee shall assume
the duties of the Master Servicer pursuant to Section 8.05 and thereupon only
for the acts or omissions of the Trustee as successor to the Master Servicer);
provided, however, that the foregoing shall not relieve the Trustee or the
Securities Administrator of its obligation to perform its duties under this
Agreement, including, without limitation, the Trustee's review of the Mortgage
Files pursuant to Section 2.02. The Trustee shall 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 rights it would have if it were not the Trustee
or the Securities Administrator.
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Section 9.05. Eligibility Requirements for Trustee and the
Securities Administrator. The Trustee and the Securities Administrator hereunder
shall at all times be (a) an institution the deposits of which are fully insured
by the FDIC and (b) a corporation or banking association organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of not less than $50,000,000.00 and subject to supervision
or examination by Federal or State authority and (c) with respect to every
successor trustee or securities administrator hereunder either an institution
(i) the long-term unsecured debt obligations of which are rated at least "___"
by _______ and "___" by _______ or (ii) whose serving as Trustee or Securities
Administrator hereunder would not result in the lowering of the current ratings
assigned to any Class of Certificates. The Trustee shall not be an affiliate of
the Depositor, the Master Servicer or the Servicer. If such corporation or
banking association publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 9.05, the combined capital and
surplus of such corporation or banking association shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. The principal office of the Trustee and the Securities
Administrator (other than the initial Trustee or Securities Administrator) shall
be in a state with respect to which an Opinion of Counsel has been delivered to
such Trustee at the time such Trustee or Securities Administrator is appointed
Trustee or Securities Administrator to the effect that the Trust will not be a
taxable entity under the laws of such state. In case at any time the Trustee or
the Securities Administrator shall cease to be eligible in accordance with the
provision of this Section 9.05, the Trustee or the Securities Administrator, as
the case may be, shall resign immediately in the manner and with the effect
specified in Section 9.06.
The Securities Administrator (i) may not be an originator, the
Master Servicer, Servicer, the Depositor or an affiliate of the Depositor unless
the Securities Administrator is in an institutional trust department, (ii) must
be authorized to exercise corporate trust powers under the laws of its
jurisdiction of organization, and (iii) must be rated at least "___" by _______
and "___" by _______, if _______ and _______, as applicable, is a Rating Agency,
or the equivalent rating by _______ (or such other rating acceptable to _______
and _______ pursuant to a ratings confirmation). If no successor Securities
Administrator shall have been appointed and shall have accepted appointment
within 60 days after the Securities Administrator ceases to be the Securities
Administrator pursuant to this Section 9.05, then the Trustee shall perform the
duties of the Securities Administrator pursuant to this Agreement.
Notwithstanding the above, the Trustee may, if it shall be unwilling so to act,
or shall, if it is legally unable so to act, appoint, or petition a court of
competent jurisdiction to appoint, an institution qualified under Section 9.05
hereof as the successor to the Securities Administrator hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
a Securities Administrator hereunder; provided, however, that any such
institution appointed as successor Securities Administrator shall not, as
evidenced in writing by each Rating Agency, adversely affect the then current
rating of any Class of Certificates immediately prior to the termination of the
Securities Administrator. The Trustee shall notify the Rating Agencies of any
change of the Securities Administrator.
Section 9.06. Resignation and Removal of Trustee and the Securities
Administrator. The Trustee or the Securities Administrator may at any time
resign and be
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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
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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 (other than pursuant to Section 3.20 hereunder). All costs
associated with the appointment of a successor Trustee or Securities
Administrator shall be paid to the Person that incurred them by the predecessor
Trustee or Securities Administrator. Without limiting the predecessor Trustee's
or Securities Administrator's obligation, if the predecessor Trustee or
Securities Administrator fails to pay such costs, such costs shall be reimbursed
by the Trust; 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.
The predecessor Trustee or Securities Administrator and the
successor Trustee or Securities Administrator, as applicable, shall notify the
Depositor of any such appointment at least two Business Days prior to the
effective date thereof and shall provide the Depositor with all information
required by the Depositor to comply with its reporting obligation under Item
6.02 of Form 8-K not later than the effective date of such appointment.
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; provided,
however, that the Trustee or Securities Administrator, as applicable, and such
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surviving Person shall notify the Depositor of any such merger, conversion or
consolidation and shall provide the Depositor with all information required by
the Depositor to comply with its reporting obligation under Item 6.02 of Form
8-K not later than the effective date of such merger, conversion or
consolidation.
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.
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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 Certificates. Initially, the Authenticating Agent shall be
______________________. Wherever reference is made in this Agreement to the
authentication of Certificates by the Securities Administrator or the Securities
Administrator's certificate of authentication, such reference shall be deemed to
include authentication on behalf of the Securities Administrator by an
Authenticating Agent and a certificate of authentication 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.
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Section 9.11. Securities Administrator's Fees and Expenses and
Trustee's Fees and Expenses. The Trustee shall be entitled to the Trustee Fee as
compensation for its services hereunder. The Trustee shall be entitled to
investment income from amounts on deposit in the Distribution Account. [The
Securities Administrator, as compensation for its services hereunder, shall be
entitled to a fee in an amount agreed upon between the Trustee and the
Securities Administrator, payable by the Trustee 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.
Notwithstanding the foregoing, to the extent the Trustee appoints
one or more Custodians with respect to more than 5% of the aggregate Pool Stated
Principal Balance, the
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Trustee shall cause such Custodian to prepare a separate assessment and
attestation report, as contemplated by Section 3.20 of this Agreement and
deliver such report to the Securities Administrator as set forth in Section 3.22
of this Agreement.
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 Distribution Account and distributions to
Certificateholders as provided in Section 3.11 and Section 5.02. Wherever
reference is made in this Agreement to the withdrawal from the Distribution
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 _______________________. 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 Distribution Account as the Securities Administrator
shall request from time to time. Each Paying Agent must be reasonably acceptable
to the Master Servicer and must be a corporation or banking association
organized and doing business under the laws of the United States of America or
of any state, having (except in the case of the Trustee or the Securities
Administrator) a principal office and place of business in New York, New York,
having a combined capital and surplus of at least $15,000,000, authorized under
such laws to do a trust business and subject to supervision or examination by
federal or state authorities. Any fees and expenses (but not including any
indemnity payments) of a Paying Agent appointed pursuant to this Agreement shall
be payable by the Securities Administrator out of its own funds and not out of
any funds in the Trust Estate.
Any corporation into which any Paying Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Paying Agent shall be
a party, or any corporation succeeding to the corporate agency business of any
Paying Agent, shall continue to be the Paying Agent provided that such
corporation after the consummation of such merger, conversion, consolidation or
succession meets the eligibility requirements of this Section 9.13.
Any Paying Agent may at any time resign by giving written notice of
resignation to the Trustee, the Securities Administrator and to the Master
Servicer; provided that the Paying Agent has returned to the Distribution
Account or otherwise accounted, to the reasonable satisfaction of the Securities
Administrator, for all amounts it has withdrawn from the Distribution Account.
The Securities Administrator may, upon prior written approval of the Master
Servicer, at any time terminate the agency of any Paying Agent by giving written
notice of termination to such Paying Agent and to the Master Servicer. Upon
receiving a notice of resignation or upon such a termination, or in case at any
time any Paying Agent shall cease to be eligible in accordance with the
provisions of the first paragraph of this Section 9.13, the Securities
Administrator may appoint, upon prior written approval of the Master Servicer, a
successor Paying Agent, shall give written notice of such appointment to the
Master Servicer and shall mail notice of such appointment to all
Certificateholders. Any successor Paying Agent upon acceptance of its
appointment hereunder shall become vested with all rights,
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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.
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ARTICLE X
TERMINATION
Section 10.01. Termination upon Purchase or Liquidation of All
Mortgage Loans. Subject to Section 10.02, the respective obligations and
responsibilities of the Depositor, the Master Servicer, the Securities
Administrator and the Trustee created hereby (other than the obligation of the
Securities Administrator to make certain payments to Certificateholders after
the Final Distribution Date and to send certain notices as hereinafter set forth
and the obligations of the Securities Administrator pursuant to Sections 5.04(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 of all the Mortgage Loans and all
REO Property remaining in the Trust Estate by the Call Right Holder at a price
equal to the sum of (i) 100% of the unpaid principal balance of each Mortgage
Loan (other than any Mortgage Loan as to which REO Property has been acquired
and whose fair market value is included pursuant to clause (ii) below), (ii) the
fair market value of such REO Property, plus any Class Unpaid Interest Shortfall
for any Class of Certificates as well as any accrued and unpaid interest through
the last day of the month of such purchase at the related Mortgage Interest Rate
on the unpaid principal balance of each Mortgage Loan (including any Mortgage
Loan as to which REO Property has been acquired) and (iii) any Reimbursement
Amount owed to the Trust pursuant to Section 2.02 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 Call Right Holder may not exercise its purchase option for the
Mortgage Loans until all Reimbursement Amounts for the Mortgage Loans have been
paid. The Securities Administrator shall notify the Sponsor, upon notice of the
Call Right Holder's intent to exercise its purchase option on the Mortgage
Loans, 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. James's, living on the date hereof.
The right of the Call Right Holder to purchase the Mortgage Loans is
conditioned upon the aggregate Stated Principal Balance of the Mortgage Loans
being less than [10]% of the aggregate Cut-off Date Principal Balance of the
Mortgage Loans. In addition, the right of the Call Right Holder to purchase the
Mortgage Loans is conditioned on the sum of clause (a)(i) and (ii) of the first
paragraph of this Section 10.01 being less than or equal to the aggregate fair
market value of the Mortgage Loans being purchased (other than any Mortgage Loan
as to which REO Property has been acquired) and the REO Properties; provided,
however, that this sentence shall not apply to any purchase by the Call Right
Holder if, at the time of purchase, the Call Right Holder is not subject to
regulation by the Office of the Comptroller of the Currency, the FDIC, the
Federal Reserve or the OTS. Fair market value for the purposes of the previous
sentence and the first paragraph of this Section 10.01 will be determined by the
Call Right Holder as of the close of business on the third Business Day next
preceding the date upon which such notice of the exercise of any purchase right
is furnished to Certificateholders pursuant to the sixth paragraph of this
Section 10.01.
If such right is exercised by the Call Right Holder, the Securities
Administrator
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shall, promptly following payment of the purchase price, release to the Call
Right Holder, or its respective designees, the Mortgage Files pertaining to such
Mortgage Loans being purchased.
Notice of the exercise of any purchase option by the Call Right
Holder and notice of any termination of the Trust or any portion of the Trust,
specifying the Final Distribution Date or the applicable Distribution Date, upon
which the applicable Certificateholders may surrender their Certificates to the
Securities Administrator for payment of the final distribution and for
cancellation, shall be given promptly by the Securities Administrator by letter
to the applicable Certificateholders mailed not earlier than the 10th day and
not later than the 15th day of the month next preceding the month of such final
distribution specifying (1) the Final Distribution Date or the applicable
Distribution Date, upon which final payment of the applicable Certificates will
be made upon presentation and surrender of such Certificates at the office or
agency of the Securities Administrator therein designated, (2) the amount of any
such final payment and (3) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the applicable Certificates at the office or agency of the
Securities Administrator therein specified. The Call Right Holder exercising its
call right shall remit to the Securities Administrator for deposit to the
Distribution Account on or before the Final Distribution Date or the applicable
Distribution Date, in immediately available funds an amount equal to the amount
necessary to make the amount, if any, on deposit in the Distribution Account on
such Final Distribution Date or Distribution Date, as applicable, equal to the
purchase price for the related assets of the Trust Estate or any portion of the
Trust Estate computed as above provided together with a statement as to the
amount to be distributed on each applicable Class of Certificates pursuant to
the next succeeding paragraph. Not less than five Business Days prior to the
Final Distribution Date, the Trustee shall notify the Depositor of the amount of
any unpaid Reimbursement Amount owed to the Trust and the Depositor shall
deposit such amount in the Distribution Account not later than the Business Day
preceding the Final Distribution Date.
Upon presentation and surrender of the applicable Certificates, the
Securities Administrator shall cause to be distributed to the applicable
Certificateholders of each Class, in the order set forth in Section 5.02 hereof,
on the Final Distribution Date or the applicable 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 such
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 PO Deferred Amount with respect to the Class A-PO Certificates
and (II) as to the Class A-R Certificate, the amounts, if any, which remain on
deposit in the Distribution Account (other than the amounts retained to meet
claims) after application pursuant to clause (I) above.
If the applicable Certificateholders do not surrender their
Certificates for final payment and cancellation on or before the Final
Distribution Date, the Securities Administrator shall on such date cause all
funds in the Distribution Account not distributed in final distribution to such
Certificateholders to continue to be held by the Securities Administrator in an
Eligible Account for the benefit of such Certificateholders and the Securities
Administrator shall give a second written notice to the remaining applicable
Certificateholders to surrender their Certificates for cancellation and receive
a final distribution with respect thereto. If within
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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 applicable Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds on deposit in
such Eligible Account.
Section 10.02. Additional Termination Requirements.
(a) Upon the exercise of a purchase option by the Call Right
Holder 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 REMIC created
hereunder to fail to qualify as a REMIC at any time that any related
Certificates are outstanding:
(i) within 90 days prior to the Final Distribution Date set
forth in the notice given by the Securities Administrator under Section
10.01, the Securities Administrator shall sell all of the assets of the
Trust Estate to the Call Right Holder for cash; and
(ii) the notice given by the Securities Administrator pursuant to
Section 10.01 shall provide that such notice constitutes the adopting of a
plan of complete liquidation of the REMIC as of the date of such notice
(or, if earlier, the date on which such notice was mailed to
Certificateholders). The Securities Administrator shall also ensure that
such date is specified in the final tax return of the REMIC.
(b) (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 Trust Estate as a REMIC at all
times that any related Certificates are outstanding or to avoid or minimize the
risk of the imposition of any tax on the REMIC pursuant to the Code that would
be a claim against the Trust Estate, provided that (a) the Trustee and the
Securities Administrator have received an Opinion of Counsel to the effect that
such action is necessary or desirable to maintain such qualification or to avoid
or
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minimize the risk of the imposition of any such tax and (b) such action shall
not, as evidenced by such Opinion of Counsel, adversely affect in any material
respect the interests of any Certificateholder, (iv) to change the timing and/or
nature of deposits into the Distribution Account provided that (a) such change
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and (b) such change
shall not adversely affect the then-current rating of the Certificates (other
than the Class B-6 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
to the effect that such amendment would not subject the REMIC to any tax or
cause the REMIC to fail to qualify as a REMIC. Notwithstanding any other
provision of this Agreement, the Trustee shall not consent to any amendment to
this Agreement unless it shall first have received such Opinion of Counsel.
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.
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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 at the direction of Holders
of Certificates evidencing not less than 50% of all Voting Rights, but only upon
delivery to the Securities Administrator at the expense of the requesting
Certificateholders of an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of Certificateholders.
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,
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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, ____________________ Attention: ___________________, (c)
in the case of the Securities Administrator, ______________________, Attention:
_____________________, (d) in the case of the Trustee, ___________________,
Attention: _____________________ (e) in the case of [insert rating agency],
___________________, Attention: __________________; and (f) in the case of
[insert rating agency], ______________________, Attention:
_______________________, or, as to each party, at such other address as shall be
designated by such party in a written notice to each other party; or, as to each
party, at such other address as shall be designated by such party in a written
notice to each other party. Any notice required or permitted to be mailed to a
Certificateholder shall be given by first class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice to a
Certificateholder so mailed within the time prescribed in this Agreement shall
be conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
Section 11.06. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no
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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, authentication and delivery thereof by the
Securities Administrator pursuant to Section 6.01 are and shall be deemed fully
paid.
Section 11.08. Access to List of Certificateholders. The Certificate
Registrar will furnish or cause to be furnished to the Trustee and the
Securities Administrator, within 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.
Section 11.10. Insolvency. The Depositor, Master Servicer,
Securities Administrator and Trustee shall each notify the Depositor and the
Securities Administrator of any of the events enumerated in Item 1.03 of Form
8-K with respect to any of the Depositor, Master Servicer, Securities
Administrator or Trustee at least two Business Days prior to the
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effective date thereof and shall provide the Depositor and the Securities
Administrator with all information required by the Depositor to comply with its
reporting obligation under Item 1.03 of Form 8-K not later than the effective
date of such event.
Section 11.11. Regulation AB Compliance; Intent of Parties;
Reasonableness. The parties hereto acknowledge that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Securities and Exchange Commission or its staff,
consensus among participants in the asset-backed securities markets, advice of
counsel, or otherwise, and agree to comply with requests made by the Depositor
in good faith for delivery of information under these provisions on the basis of
evolving interpretations of Regulation AB. In connection with the Trust, the
Master Servicer, the Securities Administrator and the Trustee shall cooperate
fully with the Depositor to deliver to the Depositor (including its assignees or
designees), any and all statements, reports, certifications, records and any
other information available to such party and reasonably necessary in the good
faith determination of the Depositor to permit the Depositor to comply with the
provisions of Regulation AB, together with such disclosures relating to the
Master Servicer, the Securities Administrator and the Trustee, as applicable,
reasonably believed by the Depositor to be necessary in order to effect such
compliance.
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IN WITNESS WHEREOF, the Depositor, the Master Servicer, the
Securities Administrator and the Trustee have caused this Agreement to be duly
executed by their respective officers thereunto duly authorized to be hereunto
affixed, all as of the day and year first above written.
BANC OF AMERICA FUNDING
CORPORATION,
as Depositor
By: _______________________________
Name:
Title:
___________________________________,
as Master Servicer
By: _______________________________
Name:
Title:
___________________________________,
as Securities Administrator
By: _______________________________
Name:
Title:
___________________________________,
as Trustee
By: _______________________________
Name:
Title:
STATE OF ________________ )
) ss.:
COUNTY OF ______________ )
)
On the ____day of __________, 20__, before me, a notary public in
and for the State of ____________________, personally appeared [insert name of
individual], known to me who, being by me duly sworn, did depose and say that
s/he is a [insert title of individual] of [insert name of company], a [insert
form of organization], 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 ___ day of ____, 20__, before me, a notary public in and for
the State of North Carolina, personally appeared [insert name of individual],
known to me who, being by me duly sworn, did depose and say that s/he is a
[insert title of individual] 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 ________________ )
) ss.:
COUNTY OF ______________ )
)
On the ____day of __________, 20__, before me, a notary public in
and for the State of ____________________, personally appeared [insert name of
individual], known to me who, being by me duly sworn, did depose and say that
s/he is a [insert title of individual] of [insert name of company], a [insert
form of organization], 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 ________________ )
) ss.:
COUNTY OF ______________ )
)
On the ____day of __________, 20__, before me, a notary public in
and for the State of ____________________, personally appeared [insert name of
individual], known to me who, being by me duly sworn, did depose and say that
s/he is a [insert title of individual] of [insert name of company], a [insert
form of organization], 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
[FORM OF FACE OF CLASS A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 20___-___
Class A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
A-1-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2006-1
Class 1-A-1
evidencing an interest in a Trust consisting primarily of [fixed]-rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.: __________
Cut-Off Date: __________ ___, 20___
First Distribution Date: __________ ___, 20___
Initial Certificate
Balance of this
Certificate
("Denomination"): $[__________]
Initial Class Certificate
Balance of this Class: $[__________]
Pass-Through Rate: [_____]%
CUSIP No.: [__________]
ISIN No.: [__________]
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (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 __________ ___, 20___ (the "Pooling and
Servicing Agreement"), among the Depositor, [__________], as master servicer
(the "Master Servicer") and securities administrator (the "Securities
Administrator"), and [__________], as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer,
A-1-2
the Securities Administrator or the Trustee or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
A-1-3
EXHIBIT A-R
[FORM OF FACE OF CLASS A-R CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 20___-___
Class A-R
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CLASS A-R CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW WHICH IS SIMILAR
TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), OR A PERSON ACTING ON BEHALF OF
OR INVESTING ASSETS OF A PLAN.
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN TAX RELATED TRANSFER
RESTRICTIONS DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT. ANY
ATTEMPTED OR PURPORTED TRANSFER OF THIS CLASS A-R CERTIFICATE IN VIOLATION OF
SUCH RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN
THE PURPORTED TRANSFEREE.
A-R-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 20___-___
Class A-R
evidencing a 100% Percentage Interest in the distributions allocable to the
Certificate of the above-referenced Class with respect to a Trust consisting
primarily of [fixed]-rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.: __________
Cut-off Date: __________ ___, 20___
First Distribution Date: __________ ___, 20___
Initial Certificate
Balance of this
Certificate
("Denomination"): $[100.00]
Initial Class Certificate
Balance of this Class: $[100.00]
Pass-Through Rate: [_____]%
CUSIP No.: [__________]
ISIN No.: [__________]
THIS CERTIFIES THAT _________ is the registered owner of 100% Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated __________ ___, 20___ (the "Pooling and
Servicing Agreement"), among the Depositor, [__________], as master servicer
(the "Master Servicer") and securities administrator (the "Securities
Administrator"), and [__________], as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this
A-R-2
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
Any distribution of the proceeds of any remaining assets of the applicable
subaccount of the Certificate Account will be made only upon presentment and
surrender of this Class A-R Certificate at the Corporate Trust Office.
Each Person who has or who acquires this Class A-R Certificate shall be
deemed by the acceptance or acquisition thereof to have agreed to be bound by
the following provisions and the rights of each Person acquiring this Class A-R
Certificate are expressly subject to the following provisions: (i) each Person
holding or acquiring this Class A-R Certificate shall be a Permitted Transferee
and shall promptly notify the Securities Administrator of any change or
impending change in its status as a Permitted Transferee; (ii) no Person shall
acquire an ownership interest in this Class A-R Certificate unless such
ownership interest is a pro rata undivided interest; (iii) in connection with
any proposed transfer of this Class A-R Certificate, the Securities
Administrator shall require delivery to it, in form and substance satisfactory
to it, of an affidavit in the form of Exhibit I to the Pooling and Servicing
Agreement; (iv) notwithstanding the delivery of an affidavit by a proposed
transferee under clause (iii) above, if a Responsible Officer of the Securities
Administrator has actual knowledge that the proposed transferee is not a
Permitted Transferee, no transfer of any Ownership Interest in this Class A-R
Certificate to such proposed transferee shall be effected; (v) this Class 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 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 A-R
Certificate will not be disregarded for federal income tax purposes; (vi) any
attempted or purported transfer of this Class A-R Certificate in violation of
the provisions of such restrictions shall be absolutely null and void and shall
vest no rights in the purported transferee; and (vii) if any Person other than a
Permitted Transferee acquires the Class A-R Certificate in violation of such
restrictions, then the Securities Administrator, based on information provided
to the Securities Administrator by the 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.
* * *
A-R-3
EXHIBIT A-PO
[FORM OF FACE OF CLASS A-PO CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 20___-___
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, 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.
A-PO-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 20___-___
Class A-PO
evidencing an interest in a Trust consisting primarily of [fixed]-rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.: __________
Cut-Off Date: __________ ___, 20___
First Distribution Date: __________ ___, 20___
Initial Certificate
Balance of this
Certificate
("Denomination"): $[___________]
Initial Class Certificate
Balance of this Class: $[___________]
CUSIP No.: [__________]
ISIN No.: [__________]
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 __________ ___, 20___ (the "Pooling and
Servicing Agreement"), among the Depositor, [__________], as master servicer
(the "Master Servicer") and securities administrator (the "Securities
Administrator"), and [__________], as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
This Class A-PO Certificate represents the right to receive principal
only.
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
A-PO-2
an obligation of, or an interest in, and is not guaranteed by the Depositor, the
Master Servicer, the Securities Administrator or the Trustee or any of their
respective affiliates. Neither this 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.
* * *
A-PO-3
EXHIBIT B-1
[FORM OF FACE OF CLASS B-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 20___-___
Class B-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
B-1-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 20___-___
Class B-1
evidencing an interest in a Trust consisting primarily of [fixed]-rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.: ___________
Cut-Off Date: __________ ___, 20___
First Distribution Date: __________ ___, 20___
Initial Certificate
Balance of this
Certificate
("Denomination"): $[__________]
Initial Class Certificate
Balance of this Class: $[__________]
Pass-Through Rate: [_____]%
CUSIP No.: [__________]
ISIN No.: [__________]
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (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 __________ ___, 20___ (the "Pooling and
Servicing Agreement"), among the Depositor, [__________], as master servicer
(the "Master Servicer") and securities administrator (the "Securities
Administrator"), and [__________], as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence
B-1-2
an obligation of, or an interest in, and is not guaranteed by the Depositor, the
Master Servicer, the Securities Administrator or the Trustee or any of their
respective affiliates. Neither this 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.
* * *
X-0-0
XXXXXXX X-0
[FORM OF FACE OF CLASS B-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 20___-___
Class B-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AND THE CLASS B-1 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT.
B-2-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 20___-___
Class B-2
evidencing an interest in a Trust consisting primarily of [fixed]-rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.: __________
Cut-Off Date: __________ ___, 20___
First Distribution Date: __________ ___, 20___
Initial Certificate
Balance of this
Certificate
("Denomination"): $[__________]
Initial Class Certificate
Balance of this Class: $[__________]
Pass-Through Rate: [_____]%
CUSIP No.: [__________]
ISIN No.: [__________]
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (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 __________ ___, 20___ (the "Pooling and
Servicing Agreement"), among the Depositor, [__________], as master servicer
(the "Master Servicer") and securities administrator (the "Securities
Administrator"), and [__________], as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence
B-2-2
an obligation of, or an interest in, and is not guaranteed by the Depositor, the
Master Servicer, the Securities Administrator or the Trustee or any of their
respective affiliates. Neither this 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.
* * *
X-0-0
XXXXXXX X-0
[FORM OF FACE OF CLASS B-3 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 20___-___
Class B-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AND THE CLASS B-1 AND CLASS B-2 CERTIFICATES AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT.
B-3-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 20___-___
Class B-3
evidencing an interest in a Trust consisting primarily of [fixed]-rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.: __________
Cut-Off Date: __________ ___, 20___
First Distribution Date: __________ ___, 20___
Initial Certificate
Balance of this
Certificate
("Denomination"): $[__________]
Initial Class Certificate
Balance of this Class: $[__________]
Pass-Through Rate: [_____]%
CUSIP No.: [__________]
ISIN No.: [__________]
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (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 __________ ___, 20___ (the "Pooling and
Servicing Agreement"), among the Depositor, [__________], as master servicer
(the "Master Servicer") and securities administrator (the "Securities
Administrator"), and [__________], as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence
B-3-2
an obligation of, or an interest in, and is not guaranteed by the Depositor, the
Master Servicer, the Securities Administrator or the Trustee or any of their
respective affiliates. Neither this 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.
* * *
X-0-0
XXXXXXX X-0
[FORM OF FACE OF CLASS B-4 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 20___-___
Class B-4
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AND THE 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 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
B-4-4
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, TO THE EFFECT THAT THE
PURCHASE OR HOLDING OF THIS CERTIFICATE BY OR ON BEHALF OF SUCH PLAN WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING
OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW AND WILL NOT SUBJECT THE
DEPOSITOR, THE 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 SECURITIES ADMINISTRATOR. THE POOLING AND SERVICING
AGREEMENT PROVIDES THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF
THESE TRANSFER RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY
PURPORTED TRANSFEREE.
B-4-5
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 20___-___
Class B-4
evidencing an interest in a Trust consisting primarily of [fixed]-rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.: __________
Cut-Off Date: December __________ ___, 20___
First Distribution Date: __________ ___, 20___
Initial Certificate
Balance of this
Certificate
("Denomination"): $[__________]
Initial Class Certificate
Balance of this Class: $[__________]
Pass-Through Rate [_____]%
CUSIP No.: [__________]
ISIN No.: [__________]
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (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 __________ ___, 20___ (the "Pooling and
Servicing Agreement"), among the Depositor, [__________]., as master servicer
(the "Master Servicer") and securities administrator (the "Securities
Administrator"), and [__________], as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not
B-4-6
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Master Servicer, the Securities Administrator or the Trustee or
any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Securities
Administrator or the Depositor; provided that the foregoing requirements under
clauses (i) and (ii) shall not apply to a transfer of a Private Certificate
between or among the Depositor, the Seller, their affiliates or both. The Holder
of a Private Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Securities Administrator and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
X-0-0
XXXXXXX X-0
[FORM OF FACE OF CLASS B-5 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 20___-___
Class B-5
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AND THE 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 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
B-5-1
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, TO THE EFFECT THAT THE
PURCHASE OR HOLDING OF THIS CERTIFICATE BY OR ON BEHALF OF SUCH PLAN WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING
OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW AND WILL NOT SUBJECT THE
DEPOSITOR, THE 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 SECURITIES ADMINISTRATOR. THE POOLING AND SERVICING
AGREEMENT PROVIDES THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF
THESE TRANSFER RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY
PURPORTED TRANSFEREE.
B-5-2
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 20___-___
Class B-5
evidencing an interest in a Trust consisting primarily of [fixed]-rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.: __________
Cut-Off Date: December __________ ___, 20___
First Distribution Date: __________ ___, 20___
Initial Certificate
Balance of this
Certificate
("Denomination"): $[__________]
Initial Class Certificate
Balance of this Class: $[__________]
Pass-Through Rate [_____]%
CUSIP No.: [__________]
ISIN No.: [__________]
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (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 __________ ___, 20___ (the "Pooling and
Servicing Agreement"), among the Depositor, [__________], as master servicer
(the "Master Servicer") and securities administrator (the "Securities
Administrator"), and [__________], as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
B-5-3
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Securities
Administrator or the Depositor; provided that the foregoing requirements under
clauses (i) and (ii) shall not apply to a transfer of a Private Certificate
between or among the Depositor, the Seller, their affiliates or both. The Holder
of a Private Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Securities Administrator and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
X-0-0
XXXXXXX X-0
[FORM OF FACE OF CLASS B-6 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 20___-___
Class B-6
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AND THE 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 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
B-6-5
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, TO THE EFFECT THAT THE
PURCHASE OR HOLDING OF THIS CERTIFICATE BY OR ON BEHALF OF SUCH PLAN WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING
OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW AND WILL NOT SUBJECT THE
DEPOSITOR, THE 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 SECURITIES ADMINISTRATOR. THE POOLING AND SERVICING
AGREEMENT PROVIDES THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF
THESE TRANSFER RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY
PURPORTED TRANSFEREE.
B-6-6
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 20___-___
Class B-6
evidencing an interest in a Trust consisting primarily of [fixed]-rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.: __________
Cut-Off Date: December __________ ___, 20___
First Distribution Date: __________ ___, 20___
Initial Certificate
Balance of this
Certificate
("Denomination"): $[__________]
Initial Class Certificate
Balance of this Class: $[__________]
Pass-Through Rate [_____]%
CUSIP No.: [__________]
ISIN No.: [__________]
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (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 __________ ___, 20___ (the "Pooling and
Servicing Agreement"), among the Depositor, [__________], as master servicer
(the "Master Servicer") and securities administrator (the "Securities
Administrator"), and [__________], as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
B-6-7
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Securities
Administrator or the Depositor; provided that the foregoing requirements under
clauses (i) and (ii) shall not apply to a transfer of a Private Certificate
between or among the Depositor, the Seller, their affiliates or both. The Holder
of a Private Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Securities Administrator and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
B-6-8
EXHIBIT C
[FORM OF REVERSE OF ALL CERTIFICATES]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as Banc of America Funding Corporation Mortgage Pass-Through
Certificates, of the Series specified on the face hereof (collectively, the
"Certificates"), and representing a beneficial ownership interest in the Trust
created by the Pooling and Servicing Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the Pooling
and Servicing Agreement or, except as expressly provided in the Pooling and
Servicing Agreement, subject to any liability under the Pooling and Servicing
Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to the Pooling and Servicing Agreement for the
interests, rights and limitations of rights, benefits, obligations and duties
evidenced thereby, and the rights, duties and immunities of the Securities
Administrator.
Pursuant to the terms of the Pooling and Servicing Agreement, a
distribution will be made on the [__]th day of each calendar month (or, if such
day is not a Business Day, the next Business Day) (each, a "Distribution Date"),
commencing on the first Distribution Date specified on the face hereof, to the
Person in whose name this Certificate is registered at the close of business on
the applicable Record Date in an amount required pursuant to the Pooling and
Servicing Agreement.
On each Distribution Date, the Securities Administrator shall distribute
out of the Certificate Account to each Certificateholder of record on the
related Record Date (other than respecting the final distribution) (a) by check
mailed to such Certificateholder entitled to receive a distribution on such
Distribution Date at the address appearing in the Certificate Register, or (b)
upon written request by the Holder of a Certificate (other than a Residual
Certificate), by wire transfer or by such other means of payment as such
Certificateholder and the Securities Administrator shall agree upon, such
Certificateholder's Percentage Interest in the amount to which the related Class
of Certificates is entitled in accordance with the priorities set forth in
Section 5.02 of the Pooling and Servicing Agreement; provided, however, that in
the case of a Class of the Special Retail Certificates, distributions of
principal to which such Class is entitled will be made to the Holders of such
Class as described in Section 5.11 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.
C-1
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
of the Mortgage Loans is less than [10]% of the aggregate Cut-off Date Pool
Principal Balance of such Mortgage Loans, the Call Right Holder has the option
to purchase the Mortgage Loans under the conditions set forth in Section 10.01
of the Pooling and Servicing Agreement. In the event that no such termination
occurs, the obligations and responsibilities created by the Pooling and
Servicing Agreement will terminate upon the later of the maturity or other
liquidation (or any
C-2
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. James's, living on the date
thereof.
Any term used herein that is defined in the Pooling and Servicing
Agreement shall have the meaning assigned in the Pooling and Servicing
Agreement, and nothing herein shall be deemed inconsistent with that meaning.
C-3
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
[__________],
as Securities Administrator
By _________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the Pooling and Servicing
Agreement referenced herein.
[__________],
as Securities Administrator
By _________________________________
Authorized Signatory
C-4
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
_______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________ for the
account of ___________________, account number _________________________, or, if
mailed by check, to Applicable statements should be mailed to
This information is provided by ____________________________, the assignee
named above, or , as its agent.
C-5
EXHIBIT D
MORTGAGE LOAN SCHEDULE
D-1
EXHIBIT E
REQUEST FOR RELEASE OF DOCUMENTS
__________ ___, 20___
To: [__________]
[__________]
[__________]
Attention: [__________]
Re: The Pooling and Servicing Agreement dated __________ ___, 20___ , among
Banc of America Funding Corporation, as Depositor, [__________], as
Securities Administrator and Master Servicer, and [__________], as
Trustee.
In connection with the administration of the Mortgage Loans held by you,
as Custodian, pursuant to the above-captioned Pooling and Servicing Agreement,
we request the release, and hereby acknowledge receipt, of the Mortgage File for
the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
Mortgagor Name, Address & Zip Code:
Reason for Requesting Documents (check one)
____ 1. Mortgage Paid in Full
____ 2. Foreclosure
____ 3. Substitution
____ 4. Other Liquidation
____ 5. Nonliquidation Reason: _______________
By: ___________________________________
(authorized signer of Bank of
America, National Association)
Issuer: _______________________________
E-1
Address:_______________________________
_______________________________________
Date: _________________________________
Custodian
[__________]
Please acknowledge the execution of the above request by your signature and date
below:
_____________________________________ _______________
Signature Date
Documents returned to Custodian:
_____________________________________ _______________
Custodian Date
E-2
EXHIBIT F
FORM OF CERTIFICATION OF ESTABLISHMENT OF ACCOUNT
__________ ___, 20___
[_______________] hereby certifies that it has established a [__________]
Account pursuant to Section [________] of the Pooling and Servicing Agreement,
dated __________ ___, 20___, among Banc of America Funding Corporation, as
Depositor, [__________], as Securities Administrator and Master Servicer, and
[__________], as Trustee.
[______________],
By: ___________________________________
Name: _________________________________
Title: ________________________________
F-1
EXHIBIT G-1
FORM OF TRANSFEROR'S CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
[__________]
[__________]
[__________]
Attention: Corporate Trust Services - BAFC 20___-___
Re: Banc of America Funding Corporation, Mortgage Pass-Through Certificates,
Series 20___-___, Class ___, having an initial aggregate Certificate
Balance as of __________ ___, 20___ 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 __________ ___, 20___, among Banc of America Funding
Corporation, as Depositor, [__________], as Securities Administrator and Master
Servicer, and [__________], as Trustee. All capitalized terms used herein and
not otherwise defined shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Securities Administrator, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any
offer to buy or accept a transfer, pledge or other disposition of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security with
any person in any manner, (d) made any general solicitation with respect
to any Transferred Certificate, any interest in a Transferred Certificate
or any other similar security by means of general advertising or in any
other manner, or (e) taken any other action with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security, which (in the case of any of the acts described in
clauses (a) through (e) hereof) would constitute a distribution of the
Transferred Certificates under the Securities Act of 1933, as amended (the
"1933 Act"), would render the disposition of the Transferred Certificates
a violation of Section 5 of the 1933 Act or
G-1-1
any state securities laws, or would require registration or qualification
of the Transferred Certificates pursuant to the 1933 Act or any state
securities laws.
Very truly yours,
_______________________________________
(Transferor)
By: ___________________________________
Name: _________________________________
Title: ________________________________
G-1-2
EXHIBIT G-2A
FORM 1 OF TRANSFEREE'S CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
[__________]
[__________]
[__________]
Attention: Corporate Trust Services - BAFC 20___-___
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 20___-___, Class ___, having an initial
aggregate Certificate Balance as of __________ ___, 20___ 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 __________ ___, 20___ among Banc of America
Funding Corporation, as Depositor, [__________], as Securities Administrator and
Master Servicer, and [__________], as Trustee. All capitalized terms used herein
and not otherwise defined shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Securities Administrator, that:
1. The Transferee is a "qualified institutional buyer"
(a "Qualified Institutional Buyer") as that term is defined in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the "1933
Act"), and has completed one of the forms of certification to that effect
attached hereto as Annex 1 and Annex 2. The Transferee is aware that the
sale to it is being made in reliance on Rule 144A. The Transferee is
acquiring the Transferred Certificates for its own account or for the
account of another Qualified Institutional Buyer, and understands that
such Transferred Certificates may be resold, pledged or transferred only
(a) to a person reasonably believed to be a Qualified Institutional Buyer
that purchases for its own account or for the account of another Qualified
Institutional Buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (b) pursuant to
another exemption from registration under the 1933 Act.
2. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the nature, performance and servicing of the
Mortgage Loans, (d) the Pooling and Servicing Agreement and the Trust
created pursuant thereto, (e) any credit enhancement mechanism
G-2A-1
associated with the Transferred Certificate, and (f) all related matters,
that it has requested.
3. If the Transferee proposes that the Transferred Certificates
be registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgment below.
Very truly yours,
_______________________________________
(Transferor)
By: ___________________________________
Name: _________________________________
Title: ________________________________
G-2A-2
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
_______________________________________
(Nominee)
By: ___________________________________
Name: _________________________________
Title: ________________________________
G-2A-3
ANNEX 1 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [__________________] (the
"Transferor") [__________], as Securities Administrator with respect to the
mortgage pass-through certificates (the "Transferred Certificates") described in
the Transferee certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended,
because (i) the Transferee owned and/or invested on a discretionary basis
$______________________(1) in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any state, U.S. territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the state or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. bank, and not more than 18 months
preceding such date of sale in the case of a foreign bank or
equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a state or federal authority having supervision over
any such institutions, or is a foreign savings and loan
________________________
(1) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that
case, Transferee must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
G-2A-4
association or equivalent institute and (b) has an audited net worth
of at least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached hereto, as of a
date not more than 16 months preceding the date of sale of the
Transferred Certificates in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date of sale
in the case of a foreign savings and loan association or equivalent
institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a state, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency or
instrumentality of the state or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Transferee, (ii) securities that are
part of an unsold allotment to or subscription by the Transferee, if the
Transferee is a dealer, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
did not include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market.
G-2A-5
Further, in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee may be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
_______________________________________
Print Name of Transferee
By: ___________________________________
Name: _________________________________
Title: ________________________________
Date: _________________________________
G-2A-6
ANNEX 2 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [_________________] (the
"Transferor") [__________], as Securities Administrator, with respect to the
mortgage pass-through certificates (the "Transferred Certificates") described in
the Transferee certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A ("Rule 144A") under the Securities Act of 1933, as amended, because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, and (ii) as marked below, the Transferee
alone owned and/or invested on a discretionary basis, or the Transferee's Family
of Investment Companies owned, at least $100,000,000 in securities (other than
the excluded securities referred to below) as of the end of the Transferee's
most recent fiscal year. For purposes of determining the amount of securities
owned by the Transferee or the Transferee's Family of Investment Companies, the
cost of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis
$__________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $__________________ in securities (other than
the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
G-2A-7
4. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
_______________________________________
Print Name of Transferee or Adviser
By: ___________________________________
Name: _________________________________
Title: ________________________________
IF AN ADVISER:
_______________________________________
Print Name of Transferee
By: ___________________________________
Date: _________________________________
G-2A-8
EXHIBIT G-2B
FORM 2 OF TRANSFEREE'S CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
[__________]
[__________]
[__________]
Attention: Corporate Trust Services - BAFC 20___-___
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 20___-___, Class ___, having an initial
aggregate Certificate Principal Balance as of __________ ___, 20___
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 January 31, 2006 , among Banc of
America Funding Corporation, as Depositor, [__________], as Securities
Administrator and Master Servicer, and [__________], as Trustee. All capitalized
terms used herein and not otherwise defined shall have the respective meanings
set forth in the Pooling and Servicing Agreement. The Transferor hereby
certifies, represents and warrants to you, as Securities Administrator, that:
1. 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
G-2B-1
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
G-2B-2
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, TO THE EFFECT THAT THE PURCHASE OR
HOLDING OF THIS CERTIFICATE BY OR ON BEHALF OF SUCH PLAN WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE
MEANING OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW AND WILL NOT
SUBJECT THE DEPOSITOR, THE 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
SECURITIES ADMINISTRATOR. THE POOLING AND SERVICING AGREEMENT PROVIDES
THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER
RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY
PURPORTED TRANSFEREE.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (d) above) would constitute a distribution of the
Transferred Certificates under the 1933 Act, would render the disposition of the
Transferred Certificates a violation of Section 5 of the 1933 Act or any state
securities law or would require registration or qualification of the Transferred
Certificates pursuant thereto. The Transferee will not act, nor has it
authorized nor will it authorize any person to act, in any manner set forth in
the foregoing sentence with respect to the Transferred Certificates, any
interest in the Transferred Certificates or any other similar security.
5. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Transferred Certificates and distributions thereon, (c)
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust created
G-2B-3
pursuant thereto, (e) any credit enhancement mechanism associated with the
Transferred Certificates, and (f) all related matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501 (a) under the 1933 Act or an entity
in which all the equity owners come within such paragraphs and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Transferred
Certificates; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
_______________________________________
(Transferee)
By: ___________________________________
Name: _________________________________
Title: ________________________________
Date: _________________________________
G-2B-4
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
_______________________________________
(Nominee)
By: ___________________________________
Name: _________________________________
Title: ________________________________
G-2B-5
EXHIBIT H
FORM OF TRANSFEREE REPRESENTATION LETTER
FOR ERISA RESTRICTED CERTIFICATES
[__________]
[__________]
[__________]
Attention: Corporate Trust Services - BAFC 20___-___
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 20___-___, Class ___, having an initial
aggregate Certificate Principal Balance as of __________ ___, 20___
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 January 31, 2006 , among Banc of
America Funding Corporation, as Depositor, [__________], as Securities
Administrator and Master Servicer, and [__________], as Trustee. All capitalized
terms used herein and not otherwise defined shall have the respective meanings
set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to you, as
Securities Administrator, either that:
(a) it is not, and is not acting on behalf of, an employee benefit plan
or arrangement, including an individual retirement account, subject to the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), the
Internal Revenue Code of 1986, as amended (the "Code"), or any federal, state or
local law ("Similar Law") which is similar to ERISA or the Code (collectively, a
"Plan"), and it is not using the assets of any such Plan to effect the purchase
of the Transferred Certificates; or
(b) with respect to the Class B-4, Class B-5 and Class B-6 Certificates,
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
H-1
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: _________________________________
H-2
EXHIBIT I
FORM OF AFFIDAVIT REGARDING TRANSFER OF
RESIDUAL CERTIFICATE
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 20___-___
STATE OF )
) ss:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of _______________________________,
the proposed transferee (the "Transferee") of the Class A-R Certificate (the
"Residual Certificate") issued pursuant to the Pooling and Servicing Agreement,
dated ___________ ___, 20____, among Banc of America Funding Corporation, as
Depositor, [__________], as Securities Administrator and Master Servicer, and
[__________], as Trustee. Capitalized terms used but not defined herein shall
have the meanings ascribed to such terms in the Agreement. The Transferee has
authorized the undersigned to make this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the transfer, a Permitted Transferee. The Transferee is acquiring the
Residual Certificate either (i) for its own account or (ii) as nominee, trustee
or agent for another Person who is a Permitted Transferee and has attached
hereto an affidavit from such Person in substantially the same form as this
affidavit. The Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Residual Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will
be imposed on a "pass-through entity" holding the Certificate if at any time
during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record Holder of an interest in such entity. The
Transferee understands that, other than in the case of an "electing large
partnership" under Section 775 of the Code, such tax will not be imposed for any
period with respect to which the record Holder furnishes to the pass-through
entity an affidavit that such record Holder is a Permitted Transferee and the
pass-through entity does not have actual knowledge that such affidavit is false.
(For this purpose, a "pass-through entity" includes a
I-1
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives and, except as
may be provided in Treasury Regulations, persons holding interests in
pass-through entities as a nominee for another Person.)
5. The Transferee has reviewed the provisions of Section 6.02 of the
Agreement and understands the legal consequences of the acquisition of the
Residual Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 6.02 of the Agreement and the restrictions noted on
the face of the Certificate. The Transferee understands and agrees that any
breach of any of the representations included herein shall render the transfer
to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a transfer affidavit in the form of
this Affidavit from any Person to whom the Transferee attempts to transfer the
Residual Certificate, and in connection with any transfer by a Person for whom
the Transferee is acting as nominee, trustee or agent, and the Transferee will
not transfer the Residual Certificate or cause the Residual Certificate to be
transferred to any Person that the Transferee knows is not a Permitted
Transferee.
7. The Transferee historically has paid its debts as they have become
due, and it intends to do so in the future.
8. The Transferee does not have the intention to impede the assessment
or collection of any tax legally required to be paid with respect to the
Residual Certificate.
9. The taxpayer identification number of the Transferee's nominee is
___________.
10. The Transferee is a (i) U.S. Person as defined in Code Section
7701(a)(30) or (ii) (A) the Transferee holds the Residual Certificate in
connection with the conduct of a trade or business within the United States and
has furnished the transferor and the Securities Administrator with an effective
Internal Revenue Service Form W-8ECI (or successor thereto) or (B) the
Transferee has delivered to both the transferor and the Securities Administrator
an Opinion of Counsel from a nationally-recognized tax counsel to the effect
that such transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of the Residual
Certificate will not be disregarded for federal income tax purposes..
11. The Transferee is aware that the Residual Certificate may be a
"noneconomic residual interest" within the meaning of Treasury Regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
12. The Transferee will not cause income from the Residual Certificate
to be attributable to a foreign permanent establishment or fixed base, within
the meaning of an applicable income tax treaty, of the Transferee or any other
U.S. Person.
I-2
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.
I-3
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.
15. The Transferee understands that it may incur tax liabilities with
respect to the Residual Certificate in excess of cash flows generated thereby.
16. The Transferee intends to pay taxes associated with holding the
Residual Certificate as such taxes become due.
* * *
I-4
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer this _____ day of ________________, ____.
_______________________________________
Print Name of Transferee
By:___________________________________
Name:
Title:
Personally appeared before me the above-named ___________________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the _______________________ of the Transferee, and
acknowledged that he executed the same as his free act and deed and the free act
and deed of the Transferee.
Subscribed and sworn before me this _____ day of _______________________,
____
_______________________________________
NOTARY PUBLIC
My Commission expires the ____ day of
______________, ____
I-5
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
I-6
(v) in the event of any transfer of the Residual Certificate by the
Transferee, the Transferee will require its transferee to
complete a representation in the form of this Attachment A as a
condition of such transferee's purchase of the Residual
Certificate.
I-7
EXHIBIT J
[Reserved]
J-1
EXHIBIT K
[Reserved]
K-1
EXHIBIT L
LIST OF RECORDATION STATES
[__________]
L-1
EXHIBIT M
FORM OF INITIAL CERTIFICATION OF THE [TRUSTEE] [CUSTODIAN]
__________ ___, 20___
Banc of America Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
[__________]
[__________]
[__________]
Attention: Corporate Trust Services - BAFC 20___-___
Re: The Pooling and Servicing Agreement, dated __________ ___, 20___
(the "Pooling and Servicing Agreement"), among the Depositor,
[__________], as Securities Administrator and Master Servicer, and
[__________], as trustee.
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as [Trustee] [Custodian], hereby certifies that, except as
specified in any list of exceptions attached hereto, it has received the
original Mortgage Note relating to each of the Mortgage Loans listed on the
Mortgage Loan Schedule.
The [Trustee] [Custodian] has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the Pooling and Servicing Agreement in connection with this Initial
Certification. The [Trustee] [Custodian] makes no representations as to: (i) the
validity, legality, sufficiency, enforceability, recordability or genuineness of
any of the documents contained in each Mortgage File or any of the Mortgage
Loans identified in the Mortgage Loan Schedule or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
M-1
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
[__________],
[as Trustee][as Custodian]
By: ___________________________________
Name: _________________________________
Title: ________________________________
M-2
EXHIBIT N
FORM OF FINAL CERTIFICATION OF THE [TRUSTEE] [CUSTODIAN]
[__________ __, ____]
Banc of America Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
[__________]
[__________]
[__________]
Attention: Corporate Trust Services - BAFC 2006-1
Re: The Pooling and Servicing Agreement, dated __________ ___, 20___
(the "Pooling and Servicing Agreement"), among the Depositor,
[__________], as Securities Administrator and Master Servicer, and
[__________], as trustee.
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as [Trustee] [Custodian], hereby certifies that, as to each
Mortgage Loan listed in the Mortgage Loan Schedule, except as may be specified
in any list of exceptions attached hereto, such Mortgage File contains all of
the items required to be delivered pursuant to Section 2.01(b) of the Pooling
and Servicing Agreement.
The [Trustee] [Custodian] has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the Pooling and Servicing Agreement in connection with this Final
Certification. The [Trustee] [Custodian] makes no representations as to: (i) the
validity, legality, sufficiency, enforceability, recordability or genuineness of
any of the documents contained in each Mortgage File or any of the Mortgage
Loans identified in the Mortgage Loan Schedule or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
N-1
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
[__________],
[as Trustee][as Custodian]
By: ___________________________________
Name: _________________________________
Title: ________________________________
N-2
EXHIBIT O
Form of Xxxxxxxx-Xxxxx Certification
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 20___-___
I, [________], a [_____________] of [__________] (the "Master Servicer"),
certify that:
1. I have reviewed this report on Form 10-K and all reports on Form 10-D
required to be filed in respect of the period covered by this report on
Form 10-K of the Banc of America Funding 20___-___ Trust (the "Exchange
Act Periodic Reports");
2. Based on my knowledge, the Exchange Act Periodic Reports, taken as a
whole, do not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading
with respect to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided under Form 10-D for the period covered
by this report is included in the Exchange Act Periodic Reports;
4. I am responsible for reviewing the activities performed by the servicer
and based on my knowledge and the compliance reviews conducted in
preparing the servicer compliance statements required in this report under
Item 1123 of Regulation AB, and except as disclosed in the Exchange Act
Periodic Reports, the servicer has fulfilled its obligations under the
pooling and servicing agreement, dated __________ ___, 20___, among Banc
of America Funding Corporation, as depositor, [__________], as master
servicer and securities administrator, and [__________], as trustee; and
5. All of the reports on assessment of compliance with the servicing criteria
for asset-backed securities and their related attestation reports on
assessment of compliance with servicing criteria for asset-backed
securities required to be included in this report in accordance with Item
1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d- 18 have been
included as an exhibit to this report, except as otherwise disclosed in
this report. Any material instances of noncompliance described in such
reports have been disclosed in this report on Form 10-K.
In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: [__________].
[_________], 20
O-1
By:____________________________________
Name:
Title:
O-2
EXHIBIT P
FORM OF CERTIFICATION TO BE PROVIDED BY
THE SECURITIES ADMINISTRATOR TO THE MASTER SERVICER
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 20___-___
The Securities Administrator hereby certifies to the Master Servicer
and its officers, directors and affiliates, and with the knowledge and intent
that they will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal year [___]
(the "Annual Report"), and all reports on Form 10-D required to be filed
in respect of period covered by the Annual Report (collectively with the
Annual Report, the "Reports"), of the Trust;
2. To my knowledge, the Reports, taken as a whole, do not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
the Annual Report;
3. To my knowledge, the distribution information required to be provided by
the Securities Administrator under the pooling and servicing agreement,
dated __________ ___, 20___, among Banc of America Funding Corporation, as
depositor, [__________], as master servicer and securities administrator,
and [__________], as trustee (the "Pooling and Servicing Agreement") for
inclusion in the Reports is included in the Reports;
4. I am responsible for reviewing the activities performed by the Securities
Administrator under the Pooling and Servicing Agreement, and based on my
knowledge and the compliance review conducted in preparing the compliance
statement of the Securities Administrator required in the Annual Report
under Item 1123 of Regulation AB, and except as disclosed in the Reports,
the Securities Administrator has fulfilled its obligations under the
Pooling and Servicing Agreement in all material respects; and
5. The report on assessment of compliance with servicing criteria for
asset-backed securities of the Securities Administrator and its related
attestation report on assessment of compliance with servicing criteria
required to be included in the Annual Report in accordance with Item 1122
of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been
included as an exhibit to the Annual Report. Any material instances of
non-compliance are described in such report and have been disclosed in the
Annual Report.
P-1
[__________]
as Securities Administrator
By:____________________________________
Name:
Title:
P-2
EXHIBIT Q
Relevant Servicing Criteria
------------------------------------------------------------------------------------------------------------
SERVICING CRITERIA PARTIES RESPONSIBLE
------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
------------------------------------------------------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
------------------------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor Master Servicer, Securities
any performance or other triggers and events of Administrator and Servicer
default in accordance with the transaction
agreements.
------------------------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced Master Servicer, Securities
to third parties, policies and procedures are Administrator and Servicer
instituted to monitor the third party's performance
and compliance with such servicing activities.
------------------------------------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to Not applicable
maintain a back-up servicer for the mortgage loans
are maintained.
------------------------------------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is Servicer
in effect on the party participating in the
servicing function throughout the reporting period
in the amount of coverage required by and otherwise
in accordance with the terms of the transaction
agreements.
------------------------------------------------------------------------------------------------------------
CASH COLLECTION AND ADMINISTRATION
------------------------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the Master Servicer, Securities
appropriate custodial bank accounts and related bank Administrator and Servicer
clearing accounts no more than two business days
following receipt, or such other number of days
specified in the transaction agreements.
------------------------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an Master Servicer, Securities
obligor or to an investor are made only by Administrator and Servicer
authorized personnel.
------------------------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding Master Servicer, Securities
collections, cash flows or distributions, and any Administrator and Servicer
interest or other fees charged for such advances,
are made, reviewed and approved as specified in the
transaction agreements.
------------------------------------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the transaction, such as Master Servicer, Securities
cash reserve accounts or accounts established as a Administrator and Servicer
form of overcollateralization, are separately
maintained (e.g., with respect to commingling of
cash) as set forth in the transaction agreements.
------------------------------------------------------------------------------------------------------------
Q-1
------------------------------------------------------------------------------------------------------------
SERVICING CRITERIA PARTIES RESPONSIBLE
------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
------------------------------------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally Master Servicer, Securities
insured depository institution as set forth in the Administrator and Servicer
transaction agreements. For purposes of this
criterion, "federally insured depository
institution" with respect to a foreign financial
institution means a foreign financial institution
that meets the requirements of Rule 13k-1(b)(1) of
the Securities Exchange Act.
------------------------------------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent Master Servicer, Securities
unauthorized access. Administrator and Servicer
------------------------------------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for Master Servicer, Securities
all asset-backed securities related bank accounts, Administrator and Servicer
including custodial accounts and related bank
clearing accounts. These reconciliations are (A)
mathematically accurate; (B) prepared within 30
calendar days after the bank statement cutoff date,
or such other number of days specified in the
transaction agreements; (C) reviewed and approved by
someone other than the person who prepared the
reconciliation; and (D) contain explanations for
reconciling items. These reconciling items are
resolved within 90 calendar days of their original
identification, or such other number of
days specified in the transaction agreements.
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INVESTOR REMITTANCES AND REPORTING
------------------------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed Master Servicer, Securities
with the Commission, are maintained in accordance Administrator and Servicer
with the transaction agreements and applicable
Commission requirements. Specifically, such
reports (A) are prepared in accordance with
timeframes and other terms set forth in the
transaction agreements; (B) provide information
calculated in accordance with the terms specified in
the transaction agreements; (C) are filed with the
Commission as required by its rules and regulations;
and (D) agree with investors' or the trustee's
records as to the total unpaid principal balance and
number of mortgage loans serviced by the Servicer.
------------------------------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted Master Servicer, Securities
in accordance with timeframes, distribution priority Administrator and Servicer
and other terms set forth in the transaction
agreements.
------------------------------------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within Master Servicer, Securities
two business days to the Servicer's investor Administrator and Servicer
records, or such other number of days specified in
the transaction agreements.
------------------------------------------------------------------------------------------------------------
Q-2
------------------------------------------------------------------------------------------------------------
SERVICING CRITERIA PARTIES RESPONSIBLE
------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
------------------------------------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor Master Servicer, Securities
reports agree with cancelled checks, or other form Administrator and Servicer
of payment, or custodial bank statements.
------------------------------------------------------------------------------------------------------------
POOL ASSET ADMINISTRATION
------------------------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is Custodian and Servicer
maintained as required by the transaction agreements
or related mortgage loan documents.
------------------------------------------------------------------------------------------------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded Custodian and Servicer
as required by the transaction agreements
------------------------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the Servicer
asset pool are made, reviewed and approved in
accordance with any conditions or requirements in
the transaction agreements.
------------------------------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, Servicer
made in accordance with the related mortgage loan
documents are posted to the Servicer's obligor
records maintained no more than two business days
after receipt, or such other number of days
specified in the transaction agreements, and
allocated to principal, interest or other items
(e.g., escrow) in
accordance with the related mortgage loan documents.
------------------------------------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans Servicer
agree with the Servicer's records with respect to an
obligor's unpaid principal balance.
------------------------------------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an Servicer
obligor's mortgage loans (e.g., loan modifications
or re-agings) are made, reviewed and approved by
authorized personnel in accordance with the
transaction agreements and related pool asset
documents.
------------------------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., Servicer
forbearance plans, modifications and deeds in lieu
of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded
in accordance with the timeframes or other
requirements established by the transaction
agreements.
------------------------------------------------------------------------------------------------------------
Q-3
------------------------------------------------------------------------------------------------------------
SERVICING CRITERIA PARTIES RESPONSIBLE
------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
------------------------------------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are Servicer
maintained during the period a mortgage loan is
delinquent in accordance with the transaction
agreements. Such records are maintained on at least
a monthly basis, or such other period specified in
the transaction agreements, and describe the
entity's activities in monitoring delinquent
mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases
where delinquency is deemed temporary (e.g., illness
or unemployment).
------------------------------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for Servicer
mortgage loans with variable rates are computed
based on the related mortgage loan documents.
------------------------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor Servicer
(such as escrow accounts): (A) such funds are
analyzed, in accordance with the obligor's mortgage
loan documents, on at least an annual basis, or such
other period specified in the transaction
agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable
mortgage loan documents and state laws; and (C) such
funds are returned to the obligor within 30 calendar
days of full repayment of the related mortgage
loans, or such other number of days specified in the
transaction agreements.
------------------------------------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax Servicer
or insurance payments) are made on or before the
related penalty or expiration dates, as indicated on
the appropriate bills or notices for such payments,
provided that such support has been received by the
servicer at least 30 calendar days prior to these
dates, or such other number of days specified in the
transaction agreements.
------------------------------------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any Servicer
payment to be made on behalf of an obligor are paid
from the servicer's funds and not charged to the
obligor, unless the late payment was due to the
obligor's error or omission.
------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are Servicer
posted within two business days to the obligor's
records maintained by the servicer, or such other
number of days specified in the transaction
agreements.
------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible Master Servicer, Securities
accounts are recognized and recorded in accordance Administrator and Servicer
with the transaction agreements.
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Q-4
------------------------------------------------------------------------------------------------------------
SERVICING CRITERIA PARTIES RESPONSIBLE
------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
------------------------------------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other support, Master Servicer and Securities
identified in Item 1114(a)(1) through (3) or Item Administrator
1115 of Regulation AB, is maintained as set forth in
the transaction agreements.
------------------------------------------------------------------------------------------------------------
Q-5
EXHIBIT R-1
Additional Form 10-D Disclosure
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ITEM ON FORM 10-D PARTY RESPONSIBLE
-------------------------------------------------------------------------------------------------------
Item 1: Distribution and Pool Performance Servicer / Securities Administrator
Information
Any information required by 1121 which is NOT
included on the Monthly Statement
-------------------------------------------------------------------------------------------------------
Item 2: Legal Proceedings per Item 1117 of Reg AB (i) All parties to the PSA (as to themselves),
(ii) the Securities Administrator and Servicer as
to the issuing entity, (iii) the Depositor as to
the sponsor, any 1106(b) originator, any
1100(d)(1) party
-------------------------------------------------------------------------------------------------------
Item 3: Sale of Securities and Use of Proceeds Depositor
-------------------------------------------------------------------------------------------------------
Item 4: Defaults Upon Senior Securities Securities Administrator
-------------------------------------------------------------------------------------------------------
Item 5: Submission of Matters to a Vote of Securities Administrator
Security Holders
-------------------------------------------------------------------------------------------------------
Item 6: Significant Obligors of Pool Assets Depositor / Servicer
-------------------------------------------------------------------------------------------------------
Item 7: Significant Enhancement Provider As to information required pursuant to Item
Information 1114(b)(2), Depositor and, as to information
required pursuant to Item 1115(b), Securities
Administrator
-------------------------------------------------------------------------------------------------------
Item 8: Other Information Any party responsible for disclosure items on Form
8-K
-------------------------------------------------------------------------------------------------------
Item 9: Exhibits Securities Administrator
-------------------------------------------------------------------------------------------------------
R-1
EXHIBIT R-2
Additional Form 10-K Disclosure
-------------------------------------------------------------------------------------------------------
ITEM ON FORM 10-K PARTY RESPONSIBLE
-------------------------------------------------------------------------------------------------------
Item 1B: Unresolved Staff Comments Depositor
-------------------------------------------------------------------------------------------------------
Item 9B: Other Information Any party responsible for disclosure items on
Form 8-K
-------------------------------------------------------------------------------------------------------
Item 15: Exhibits, Financial Statement Schedules Securities Administrator / Depositor
-------------------------------------------------------------------------------------------------------
Additional Item: Disclosure per Item 1117 of (i) All parties to the PSA (as to themselves),
Reg AB (ii) the Securities Administrator and Master
Servicer as to the issuing entity, (iii) the
Depositor as to the sponsor, any 1106(b)
originator, any 1100(d)(1) party
-------------------------------------------------------------------------------------------------------
Additional Item: Disclosure per Item 1119 of (i) All parties to the Pooling and Servicing
Reg AB Agreement as to themselves, (ii) the Depositor
as to he sponsor, originator, significant
obligor, enhancement or support provider
-------------------------------------------------------------------------------------------------------
Additional Item: Disclosure per Item 1112(b) of Depositor / Servicer
Reg AB
-------------------------------------------------------------------------------------------------------
Additional Item: Disclosure per Items 1114(b)(2) As to information required pursuant to Item
and 1115(b) of Reg AB 1114(b)(2), Depositor and, as to information
required pursuant to Item 1115(b), Securities
Administrator
-------------------------------------------------------------------------------------------------------
Item 1B: Unresolved Staff Comments Depositor
-------------------------------------------------------------------------------------------------------
R-2
EXHIBIT R-3
Form 8-K Disclosure
-------------------------------------------------------------------------------------------------------
ITEM ON FORM 8-K PARTY RESPONSIBLE
-------------------------------------------------------------------------------------------------------
Item 1.01: Entry into a Material Definitive All parties
Agreement
-------------------------------------------------------------------------------------------------------
Item 1.02: Termination of a Material Definitive All parties
Agreement
-------------------------------------------------------------------------------------------------------
Item 1.03: Bankruptcy or Receivership Depositor
-------------------------------------------------------------------------------------------------------
Item 2.04: Triggering Events that Accelerate or Depositor
Increase a Direct Financial Obligation or an
Obligation under an Off-Balance Sheet Arrangement
-------------------------------------------------------------------------------------------------------
Item 3.03: Material Modification to Rights of Securities Administrator
Security Holders
-------------------------------------------------------------------------------------------------------
Item 5.03: Amendments of Articles of Depositor
Incorporation or Bylaws; Change of Fiscal Year
-------------------------------------------------------------------------------------------------------
Item 6.01: ABS Informational and Computational Depositor
Material
-------------------------------------------------------------------------------------------------------
Item 6.02: Change of Servicer or Securities Servicer, Securities Administrator
Administrator
-------------------------------------------------------------------------------------------------------
Item 6.03: Change in Credit Enhancement or As to material enhancement of support specified in
External Support Item 1114(a)(1) through (3), Depositor /
Securities Administrator and, as to material
enhancement or support specified in Item 1115,
Securities Administrator
-------------------------------------------------------------------------------------------------------
Item 6.04: Failure to Make a Required Securities Administrator
Distribution
-------------------------------------------------------------------------------------------------------
Item 6.05: Securities Act Updating Disclosure Depositor
-------------------------------------------------------------------------------------------------------
Item 7.01: Reg FD Disclosure Depositor
-------------------------------------------------------------------------------------------------------
Item 8.01 Depositor
-------------------------------------------------------------------------------------------------------
Item 9.01 Depositor
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R-3
