EXHIBIT 4
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XXXX XX XXXXXXX FUNDING CORPORATION,
as Depositor,
XXXXX FARGO BANK, N.A.,
as a Master Servicer and Securities Administrator,
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.,
as a Master Servicer and Representing Party,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated December 29, 2004
_______________________
Mortgage Pass-Through Certificates
Series 2004-D
==============================================================================
TABLE OF CONTENTS
PRELIMINARY STATEMENT......................................................
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms................................................
Section 1.02 Interest Calculations........................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.................................
Section 2.02 Acceptance by the Trustee or Custodian of the Mortgage
Loans.......................................................
Section 2.03 Representations, Warranties and Covenants of the Master
Servicers...................................................
Section 2.04 Representations and Warranties as to the Mortgage Loans......
Section 2.05 Designation of Interests in the REMICs.......................
Section 2.06 Designation of Start-up Day..................................
Section 2.07 REMIC Certificate Maturity Date..............................
Section 2.08 Execution and Delivery of Certificates.......................
Section 2.09 Repurchase of Converted Mortgage Loans.......................
ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicing of the Mortgage Loans.......................
Section 3.02 Monitoring of WF Servicers...................................
Section 3.03 Fidelity Bond; Errors and Omissions Insurance................
Section 3.04 Access to Certain Documentation..............................
Section 3.05 Maintenance of Primary Mortgage Insurance Policy; Claims.....
Section 3.06 Rights of the Depositor, the Securities Administrator and
the Trustee in Respect of the Master Servicers..............
Section 3.07 Trustee to Act as Master Servicer............................
Section 3.08 Servicer Custodial Accounts and Escrow Accounts..............
Section 3.09 Collection of Mortgage Loan Payments; Master Servicer
Custodial Accounts and Certificate Account..................
Section 3.10 Access to Certain Documentation and Information Regarding
the Mortgage Loans..........................................
Section 3.11 Permitted Withdrawals from the Certificate Account, the
Master Servicer Custodial Accounts and the Servicer
Custodial Accounts..........................................
Section 3.12 Maintenance of Hazard Insurance and Other Insurance..........
Section 3.13 Presentment of Claims and Collection of Proceeds.............
Section 3.14 Enforcement of Due-On-Sale Clauses; Assumption Agreements....
Section 3.15 Realization Upon Defaulted Mortgage Loans; REO Property......
Section 3.16 Trustee to Cooperate; Release of Mortgage Files..............
Section 3.17 Documents, Records and Funds in Possession of the Master
Servicer to be Held for the Trustee.........................
Section 3.18 Master Servicer Compensation and Servicer Compensation.......
Section 3.19 Annual Statement as to Compliance............................
Section 3.20 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.............................
Section 3.21 Advances.....................................................
Section 3.22 Reports to the Securities and Exchange Commission............
ARTICLE IV
MASTER SERVICER'S CERTIFICATE
Section 4.01 Master Servicer's Certificate................................
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01 Distributions................................................
Section 5.02 Priorities of Distributions..................................
Section 5.03 Allocation of Losses.........................................
Section 5.04 Statements to Certificateholders.............................
Section 5.05 Tax Returns and Reports to Certificateholders................
Section 5.06 Tax Matters Person...........................................
Section 5.07 Rights of the Tax Matters Person in Respect of the
Securities Administrator....................................
Section 5.08 REMIC Related Covenants......................................
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates.............................................
Section 6.02 Registration of Transfer and Exchange of Certificates........
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 6.04 Persons Deemed Owners........................................
ARTICLE VII
THE DEPOSITOR AND THE MASTER SERVICERS
Section 7.01 Respective Liabilities of the Depositor and the Master
Servicers...................................................
Section 7.02 Merger or Consolidation of the Depositor or the Master
Servicers...................................................
Section 7.03 Limitation on Liability of the Depositor, the Master
Servicers and Others........................................
Section 7.04 Depositor and Master Servicers Not to Resign.................
Section 7.05 WMMSC Master Servicer's Covenant Not to Solicit..............
Section 7.06 Covenant to Disclose Servicing Deficiencies..................
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default............................................
Section 8.02 Remedies of Trustee..........................................
Section 8.03 Directions by Certificateholders and Duties of Trustee
During Event of Default.....................................
Section 8.04 Action upon Certain Failures of a Master Servicer and
upon Event of Default.......................................
Section 8.05 Trustee to Act; Appointment of Successor.....................
Section 8.06 Notification to Certificateholders...........................
ARTICLE IX
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee and Securities Administrator...............
Section 9.02 Certain Matters Affecting the Trustee and the Securities
Administrator...............................................
Section 9.03 Neither Trustee nor Securities Administrator Liable for
Certificates or Mortgage Loans..............................
Section 9.04 Trustee and Securities Administrator May Own Certificates....
Section 9.05 Eligibility Requirements for Trustee and the Securities
Administrator...............................................
Section 9.06 Resignation and Removal of Trustee and the Securities
Administrator...............................................
Section 9.07 Successor Trustee or Securities Administrator................
Section 9.08 Merger or Consolidation of Trustee or Securities
Administrator...............................................
Section 9.09 Appointment of Co-Trustee or Separate Trustee................
Section 9.10 Authenticating Agents........................................
Section 9.11 Securities Administrator's Fees and Expenses and
Trustee's Fees and Expenses.................................
Section 9.12 Appointment of Custodian.....................................
Section 9.13 Paying Agents................................................
Section 9.14 Limitation of Liability......................................
Section 9.15 Trustee or Securities Administrator May Enforce Claims
Without Possession of Certificates..........................
Section 9.16 Suits for Enforcement........................................
Section 9.17 Waiver of Bond Requirement...................................
Section 9.18 Waiver of Inventory, Accounting and Appraisal Requirement....
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase or Liquidation of All Mortgage
Loans......................................................
Section 10.02 Additional Termination Requirements.........................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment...................................................
Section 11.02 Recordation of Agreement; Counterparts......................
Section 11.03 Limitation on Rights of Certificateholders..................
Section 11.04 Governing Law...............................................
Section 11.05 Notices.....................................................
Section 11.06 Severability of Provisions..................................
Section 11.07 Certificates Nonassessable and Fully Paid...................
Section 11.08 Access to List of Certificateholders........................
Section 11.09 Recharacterization..........................................
EXHIBITS
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Exhibit A-1-A-1 Form of Face of Class 1-A-1 Certificate
Exhibit A-1-A-R Form of Face of Class 1-A-R Certificate
Exhibit A-1-A-LR Form of Face of Class 1-A-LR Certificate
Exhibit A-2-A-1 Form of Face of Class 2-A-1 Certificate
Exhibit A-3-A-1 Form of Face of Class 3-A-1 Certificate
Exhibit A-4-A-1 Form of Face of Class 4-A-1 Certificate
Exhibit A-5-A-1 Form of Face of Class 5-A-1 Certificate
Exhibit A-5-A-2 Form of Face of Class 5-A-2 Certificate
Exhibit B-1 Form of Face of Class B-1 Certificate
Exhibit B-2 Form of Face of Class B-2 Certificate
Exhibit B-3 Form of Face of Class B-3 Certificate
Exhibit B-4 Form of Face of Class B-4 Certificate
Exhibit B-5 Form of Face of Class B-5 Certificate
Exhibit B-6 Form of Face of Class B-6 Certificate
Exhibit C Form of Reverse of all Certificates
Exhibit D-1 Loan Group 1 Mortgage Loan Schedule
Exhibit D-2 Loan Group 2 Mortgage Loan Schedule
Exhibit D-3 Loan Group 3 Mortgage Loan Schedule
Exhibit D-4 Loan Group 4 Mortgage Loan Schedule
Exhibit D-5 Loan Group 5 Mortgage Loan Schedule
Exhibit E Request for Release of Documents
Exhibit F Form of Certification of Establishment of Account
Exhibit G-1 Form of Transferor's Certificate
Exhibit G-2A Form 1 of Transferee's Certificate
Exhibit G-2B Form 2 of Transferee's Certificate
Exhibit H Form of Transferee Representation Letter
for ERISA Restricted Certificates
Exhibit I Form of Affidavit Regarding Transfer of Residual
Certificates
Exhibit J [Reserved]
Exhibit K [Reserved]
Exhibit L List of Recordation States
Exhibit M Form of Initial Certification
Exhibit N Form of Final Certification
Exhibit O Form of Certification
Exhibit P Form of Securities Administrator's Certification
Exhibit Q Form of WMMSC Master Servicer's Certification
Exhibit R Form of WF Master Servicer's Certification
Exhibit S Form of Custodial Agreement
Exhibit T Excerpts from S&P's LEVELS(R) Glossary
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated December 29, 2004, is
hereby executed by and among BANC OF AMERICA FUNDING CORPORATION, as depositor
(together with its permitted successors and assigns, the "Depositor"), XXXXX
FARGO BANK, N.A., as a master servicer (together with its permitted successors
and assigns, in such capacity, the "WF Master Servicer") and as securities
administrator (together with its permitted successors and assigns, in such
capacity, the "Securities Administrator"), WASHINGTON MUTUAL MORTGAGE SECURITIES
CORP., as a master servicer (together with its permitted successors and assigns,
in such capacity, the "WMMSC Master Servicer" and together with the WF Master
Servicer, the "Master Servicers" and each, a "Master Servicer") and as
representing party (together with its permitted successors and assigns, in such
capacity, the "Representing Party") and WACHOVIA BANK, NATIONAL ASSOCIATION, as
trustee (together with its permitted successors and assigns, the "Trustee").
W I T N E S S E T H T H A T:
- - - - - - - - - - - - - -
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicers, the Representing Party, 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 six real estate mortgage investment
conduits (each, a "REMIC"). The WF Group 4 Call Right Mortgage Loans shall be
the assets of the WF Group 4 REMIC. The WF Group 4 Regular Interest shall
constitute the "regular interest" and the Class 1-LR-A Interest shall be the
"residual interest" in the WF Group 4 REMIC. The WF Remaining Call Right
Mortgage Loans shall be the assets of the WF RCR REMIC. The WF RCR Regular
Interest shall constitute the "regular interest" and the Class 1-LR-B Interest
shall be the "residual interest" in the WF RCR REMIC. The Group 1 Mortgage Loans
shall be the assets of the WMMSC Group 1 REMIC. The WMMSC Group 1 Regular
Interest shall constitute the "regular interest" and the Class 1-LR-C Interest
shall be the "residual interest" in the WMMSC Group 1 REMIC. The WMMSC Group 4
Call Right Mortgage Loans shall be the assets of the WMMSC Group 4 REMIC. The
WMMSC Group 4 Regular Interest shall constitute the "regular interest" and the
Class 1-LR-D Interest shall be the "residual interest" in the WMMSC Group 4
REMIC. The WF Group 4 Regular Interest, the WF RCR Regular Interest, the WMMSC
Group 1 Regular Interest and the WMMSC Group 4 Regular Interest shall be the
assets of the Pooling REMIC. The Uncertificated Pooling REMIC Interests shall
constitute the "regular interests" and the Class 1-LR-E Interest shall be the
"residual interest in the Pooling REMIC. The Uncertificated Pooling REMIC
Interests shall constitute the assets of the Upper-Tier REMIC. The Senior
Certificates (other than the Class 1-A-R and Class 1-A-LR Certificates) and the
Class B Certificates are referred to collectively as the "Regular Certificates"
and shall constitute "regular interests" in the Upper-Tier REMIC. The Class
1-A-R Certificate shall be the "residual interest" in the Upper-Tier REMIC. The
Class 1-A-LR Certificate will represent ownership of the Class 1-LR-A Interest,
the Class 1-LR-B Interest, the Class 1-LR-C Interest, the Class 1-LR-D Interest
and the Class 1-LR-E Interest. The Certificates, the Uncertificated Pooling
REMIC Interests and the Uncertificated Group REMIC Interests will represent the
entire beneficial ownership interest in the Trust. The "latest possible maturity
date" for federal income tax purposes of all interests created hereby will be
the REMIC Certificate Maturity Date.
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess thereof
in which the Classes of Certificates shall be issuable:
=========================== ================================= ====================== ======================= ======================
Integral Multiples
Initial Class Certificate Minimum in Excess
Classes Balance Pass-Through Rate Denomination of Minimum
--------------------------- --------------------------------- ---------------------- ----------------------- ----------------------
Class 1-A-1 $106,410,000.00 (1) $1,000 $1
Class 1-A-R $50.00 (1) $50 N/A
Class 1-A-LR $50.00 (1) $50 N/A
Class 2-A-1 $47,696,000.00 (2) $1,000 $1
Class 3-A-1 $42,331,000.00 (3) $1,000 $1
Class 4-A-1 $32,434,000.00 (4) $1,000 $1
Class 5-A-1 $137,921,000.00 (5) $1,000 $1
Class 5-A-2 $3,082,000.00 (5) $1,000 $1
Class B-1 $5,389,000.00 (6) $25,000 $1
Class B-2 $3,848,000.00 (6) $25,000 $1
Class B-3 $2,117,000.00 (6) $25,000 $1
Class B-4 $1,155,000.00 (6) $25,000 $1
Class B-5 $770,000.00 (6) $25,000 $1
Class B-6 $1,732,237.00 (6) $25,000 $1
--------------------------- --------------------------------- ---------------------- ----------------------- ----------------------
---------------------
(1) For each Distribution Date, interest will accrue on these Certificates at
a per annum rate equal to the Net WAC for the Group 1 Mortgage Loans.
(2) For each Distribution Date, interest will accrue on these Certificates at
a per annum rate equal to the Net WAC for the Group 2 Mortgage Loans.
(3) For each Distribution Date, interest will accrue on these Certificates at
a per annum rate equal to the Net WAC for the Group 3 Mortgage Loans.
(4) For each Distribution Date, interest will accrue on these Certificates at
a per annum rate equal to the Net WAC for the Group 4 Mortgage Loans.
(5) For each Distribution Date, interest will accrue on these Certificates at
a per annum rate equal to the Net WAC for the Group 5 Mortgage Loans.
(6) Interest will accrue on these Certificates as of any Distribution Date at
a per annum rate equal to the weighted average (based on the Group
Subordinate Amount for each Loan Group) of the Net WAC for each of the
Group 1, Group 2, Group 3, Group 4 and Group 5 Mortgage Loans.
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.
Adjusted Pool Amount: With respect to any Distribution Date and Loan
Group, the Cut-off Date Pool Principal Balance of the Mortgage Loans in such
Loan Group minus the sum of (i) all amounts in respect of principal received in
respect of the Mortgage Loans in such Loan Group (including, without limitation,
amounts received as Monthly Payments, WF Servicer Periodic Advances, WMMSC
Advances, Principal Prepayments, Liquidation Proceeds and Substitution
Adjustment Amounts) and distributed to Holders of the Certificates of the
Related Group on such Distribution Date and all prior Distribution Dates and
(ii) the principal portion of all Realized Losses (other than Debt Service
Reductions) incurred on the Mortgage Loans in such Loan Group from the Cut-off
Date through the end of the month preceding such Distribution Date.
Administrative Fee Rate: With respect to each Mortgage Loan, the sum
of (i) the Servicing Fee Rate, (ii) solely with respect to the WMMSC Master
Serviced Loans, the WMMSC Master Servicing Fee Rate and (iii) the Securities
Administrator Fee Rate.
Advance: A WMMSC Advance, a WF Servicer Periodic Advance or a WF
Servicer Servicing Advance.
Advance Date: As to any Distribution Date and (a) the WF Master
Serviced Loans, the Business Day preceding the related Remittance Date and (b)
the WMMSC Master Serviced Loans, 11:30 a.m., Eastern time, on the Business Day
immediately preceding such Distribution Date.
Aggregate Senior Percentage: With respect to any Distribution Date,
the percentage, carried six places rounded up, obtained by dividing the
aggregate Class Certificate Balance of the Senior Certificates by the aggregate
Pool Stated Principal Balance of all the Loan Groups.
Aggregate Subordinate Percentage: As to any Distribution Date, the
aggregate Class Certificate Balance of the Subordinate Certificates divided by
the aggregate Pool Stated Principal Balance for all the Loan Groups.
Agreement: This Pooling and Servicing Agreement together with all
amendments hereof and supplements hereto.
Amounts Held for Future Distribution: As to any Distribution Date
and Loan Group, the total of the amounts held in the WMMSC Master Servicer
Custodial Account at the close of business on the preceding Determination Date
on account of (i) Payoffs received after the Payoff Period related to such
Distribution Date, (ii) Curtailments received or made in the month of such
Distribution Date, (iii) Liquidation Proceeds received or made on the WMMSC
Master Serviced Loans in such Loan Group in the month of such Distribution Date
and (iv) payments which represent receipt of Monthly Payments made on the WMMSC
Master Serviced Loans in such Loan Group in respect of a Due Date or Due Dates
subsequent to the related Due Date.
Ancillary Income: All prepayment premiums (if any), assumption fees,
late payment charges and all other ancillary income and fees with respect to the
Mortgage Loans.
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.
BANA Servicing Agreement: The Servicing Agreement, dated December
29, 2004, by and between BAFC, as depositor, and BANA, as servicer.
Book-Entry Certificate: All Classes of Certificates other than the
Physical Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii)
a day on which banking institutions in the State of Illinois, the State of North
Carolina, the State of New York, the State of Minnesota, the State of Maryland,
the State of Washington, the states in which the master servicing offices of
either Master Servicer is located or the state or states in which the Corporate
Trust Offices of the Trustee and the Securities Administrator are located are
required or authorized by law or executive order to be closed.
Calculated Principal Distribution: As defined in Section 5.03(d).
Call Right Holder: Each of the WF Master Servicer and the WMMSC
Master Servicer, in respect of their right to purchase certain groups of
Mortgage Loans as set forth in Section 10.01.
Certificate: Any of the Banc of America Funding Corporation Mortgage
Pass-Through Certificates, Series 2004-D that are issued pursuant to this
Agreement.
Certificate Account: The Eligible Account created and maintained by
the Securities Administrator pursuant to Section 3.09(a) in the name of the
Securities Administrator, on behalf of the Trustee, for the benefit of the
Certificateholders and designated "Xxxxx Fargo Bank, N.A., as Securities
Administrator for Wachovia Bank, National Association, as Trustee, in trust for
registered holders of Banc of America Funding Corporation Mortgage Pass-Through
Certificates, Series 2004-D." The Certificate Account shall be deemed to consist
of six sub-accounts; one for each of (i) the WF Group 4 Call Right Mortgage
Loans ("Sub-Account WF-4"), (ii) the Group 2, Group 3 and Group 5 Mortgage Loans
("Sub-Account WF-RCR"), (iii) the Group 1 Mortgage Loans ("Sub-Account
WMMSC-1"), (iv) the WMMSC Group 4 Call Right Mortgage Loans ("Sub-Account
WMMSC-4"), ((i) through (iv) collectively, the "Group REMIC Sub-Accounts"), and
the sub-accounts referred to herein as the Pooling REMIC Sub-Account and the
Upper-Tier Certificate Sub-Account. Funds in the Certificate Account shall be
held in trust for the Holders of the Certificates for the uses and purposes set
forth in this Agreement.
Certificate Balance: With respect to any Certificate at any date,
the maximum dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the product of the Percentage
Interest of such Certificate and the Class Certificate Balance of the Class of
Certificates of which such Certificate is a part.
Certificate Custodian: Initially, Xxxxx Fargo Bank, N.A.; 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 Servicers or any affiliate thereof shall be
deemed not to be outstanding and the Percentage Interest and Voting Rights
evidenced thereby shall not be taken into account in determining whether the
requisite amount of Percentage Interests or Voting Rights, as the case may be,
necessary to effect any such consent has been obtained, unless such entity is
the registered owner of the entire Class of Certificates, provided that the
Securities Administrator shall not be responsible for knowing that any
Certificate is registered in the name of an affiliate of the Depositor or the
Master Servicers unless one of its Responsible Officers has actual knowledge
thereof.
Certification: As defined in Section 3.22.
Class: As to the Certificates, the Class 1-A-1, Class 1-A-R, Class
1-A-LR, Class 2-A-1, Class 3-A-1, Class 4-A-1, Class 5-A-1, Class 5-A-2, Class
B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6 Certificates, as
the case may be.
Class 5-A-1 Loss Amount: With respect to any Distribution Date after
the Senior Credit Support Depletion Date, the amount, if any, by which the Class
Certificate Balance of the Class 5-A-1 Certificates would be reduced as a result
of the allocation of any reduction pursuant to Section 5.03(b) to such Class,
without regard to the operation of Section 5.03(e).
Class 5-A-2 Loss Allocation Amount: With respect to any Distribution
Date after the Senior Credit Support Depletion Date, the lesser of (a) the Class
Certificate Balance of the Class 5-A-2 Certificates with respect to such
Distribution Date prior to any reduction for the Class 5-A-2 Loss Allocation
Amount and (b) the Class 5-A-1 Loss Amount with respect to such Distribution
Date.
Class B Certificates: The Class B-1, Class B-2, Class B-3, Class
B-4, Class B-5 and Class B-6 Certificates.
Class Certificate Balance: With respect to any Class and any date of
determination, and subject to Section 5.03(f), the Initial Class Certificate
Balance of such Class minus (A) the sum of (i) all distributions of principal
made with respect thereto, (ii) all reductions in Class Certificate Balance
previously allocated thereto pursuant to Section 5.03(b) and (iii) in the case
of the Class 5-A-2 Certificates, any reduction allocated thereto pursuant to
Section 5.03(e) plus (B) the sum of (i) all increases in Class Certificate
Balance previously allocated thereto pursuant to Section 5.03(b) and (ii) in the
case of the Class 5-A-2 Certificates, any increases allocated thereto pursuant
to Section 5.03(e).
Class Interest Shortfall: For any Distribution Date and each
interest-bearing Class, the amount by which Accrued Certificate Interest for
such Class (as reduced pursuant to Section 5.02(c)) exceeds the amount of
interest actually distributed on such Class on such Distribution Date pursuant
to clause (i) of the definition of "Interest Distribution Amount."
Class Unpaid Interest Shortfall: As to any Distribution Date and
each interest-bearing Class, the amount by which the aggregate Class Interest
Shortfalls for such Class on prior Distribution Dates exceeds the amount of
interest actually distributed on such Class on such prior Distribution Dates
pursuant to clause (ii) of the definition of "Interest Distribution Amount."
Closing Date: December 29, 2004.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest: With respect to each Distribution Date, the
sum of (i) the sum of the WF Compensating Interest for each WF Servicer and (ii)
the WMMSC Compensating Interest. To the extent that the aggregate Prepayment
Interest Shortfall for a Distribution Date exceeds Compensating Interest, the
Compensating Interest for such Distribution Date shall be allocated among the
Loan Groups in proportion to the respective Prepayment Interest Shortfalls
relating to such Loan Groups.
Conversion Date: The date on which a Mortgage Loan becomes a
Converted Mortgage Loan.
Converted Mortgage Loan: Any Mortgage Loan as to which the related
Mortgagor has exercised its option pursuant to the related Mortgage Note to
convert the adjustable rate of interest on such Mortgage Loan to a fixed rate of
interest.
Cooperative: A private, cooperative housing corporation which owns
or leases land and all or part of a building or buildings, including apartments,
spaces used for commercial purposes and common areas therein and whose board of
directors authorizes, among other things, the sale of Cooperative Stock.
Cooperative Apartment: A dwelling unit in a multi-dwelling building
owned or leased by a Cooperative, which unit the Mortgagor has an exclusive
right to occupy pursuant to the terms of a proprietary lease or occupancy
agreement.
Cooperative Lease: With respect to a Cooperative Loan, the
proprietary lease or occupancy agreement with respect to the Cooperative
Apartment occupied by the Mortgagor and relating to the related Cooperative
Stock, which lease or agreement confers an exclusive right to the holder of such
Cooperative Stock to occupy such apartment.
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 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx,
00000-0000 Attention: Structured Finance Trust Services, BAFC, Series 2004-D, 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 Servicers. With respect to the Securities Administrator, the principal
corporate trust office of the Securities Administrator at which at any
particular time its corporate trust business with respect to this Agreement is
conducted, which office at the date of the execution of this instrument is
located at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention:
Corporate Trust Services - BAFC 2004-D, and for certificate transfer purposes is
located at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: Corporate Trust Services - BAFC 2004-D, 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 Servicers.
Curtailment: Any payment of principal on a WMMSC Master Serviced
Loan, made by or on behalf of the related Mortgagor, other than a Monthly
Payment, a Prepaid Monthly Payment or a Payoff, which is applied to reduce the
outstanding principal balance of such WMMSC Master Serviced Loan.
Custodial Agreement: Initially, the Custodial Agreement, dated
December 29, 2004, by and among the Trustee, the Depositor, WMMSC and U.S. Bank
National Association, which agreement is attached hereto as Exhibit S, and
thereafter any custodial agreement entered into pursuant to Section 9.12.
Custodian: Initially (i) with respect to the WMMSC Master Serviced
Loans, U.S. Bank National Association, as Custodian, and (ii) with respect to
the WF Master Serviced Loans, the Trustee and thereafter the Custodian or
Custodians, if any, hereafter appointed by the Trustee pursuant to Section 9.12.
A Custodian may (but need not) be the Trustee or any Person directly or
indirectly controlling or controlled by or under common control of either of
them. None of the Master Servicers, any Servicer or the Depositor, or any Person
directly or indirectly controlling or controlled by or under common control with
any such Person may be appointed Custodian.
Customary Servicing Procedures: With respect to (i) the WMMSC Master
Servicer or any Servicer, procedures (including collection procedures) that the
WMMSC Master Servicer or a Servicer customarily employs and exercises in
servicing and administering mortgage loans for its own account and which are in
accordance with accepted mortgage servicing practices of prudent lending
institutions servicing mortgage loans of the same type as the Mortgage Loans in
the jurisdictions in which the related Mortgaged Properties are located and (ii)
with respect to the WF Master Servicer, those master servicing procedures that
constitute customary and usual standards of practice of prudent mortgage loan
master servicers.
Cut-off Date: December 1, 2004.
Cut-off Date Pool Principal Balance: For each Loan Group, the
aggregate of the Cut-off Date Principal Balances of the Mortgage Loans in such
Loan Group which is $110,728,575.34 for Loan Group 1, $49,631,666.80 for Loan
Group 2, $44,049,379.28 for Loan Group 3, $33,750,486.76 for Loan Group 4 and
$146,725,229.31 for Loan Group 5.
Cut-off Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof as of the close of business on the Cut-off Date,
reduced by all installments of principal due on or prior thereto whether or not
paid.
Debt Service Reduction: As to any Mortgage Loan and any
Determination Date, the excess of (i) the Monthly Payment due on the related Due
Date under the terms of such Mortgage Loan over (ii) the amount of the monthly
payment of principal and/or interest required to be paid with respect to such
Due Date by the Mortgagor as established by a court of competent jurisdiction
(pursuant to an order which has become final and nonappealable) as a result of a
proceeding initiated by or against the related Mortgagor under the Bankruptcy
Code, as amended from time to time (11 U.S.C.); provided that no such excess
shall be considered a Debt Service Reduction so long as (a) the Servicer of such
Mortgage Loan is pursuing an appeal of the court order giving rise to any such
modification and (b)(1) such Mortgage Loan is not in default with respect to
payment due thereunder in accordance with the terms of such Mortgage Loan as in
effect on the Cut-off Date or (2) Monthly Payments are being advanced by the
applicable Servicer, the WMMSC Master Servicer, the WF 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 Sections 2.02 or 2.04.
Deficient Valuation: As to any Mortgage Loan and any Determination
Date, the excess of (i) the then outstanding indebtedness under such Mortgage
Loan over (ii) the secured valuation thereof established by a court of competent
jurisdiction (pursuant to an order which has become final and nonappealable) as
a result of a proceeding initiated by or against the related Mortgagor under the
Bankruptcy Code, as amended from time to time (11 U.S.C.), pursuant to which
such Mortgagor retained such Mortgaged Property; provided that no such excess
shall be considered a Deficient Valuation so long as (a) the applicable Servicer
is pursuing an appeal of the court order giving rise to any such modification
and (b)(1) such Mortgage Loan is not in default with respect to payments due
thereunder in accordance with the terms of such Mortgage Loan as in effect on
the Cut-off Date or (2) Monthly Payments are being advanced by the applicable
Servicer, the WMMSC Master Servicer, the WF 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.
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.
Depositor Indemnified Parties: As defined in Section 3.23(c).
Depository: The Depository Trust Company, the nominee of which is
Cede & Co., as the registered Holder of the Book-Entry Certificates or any
successor thereto appointed in accordance with this Agreement. The Depository
shall at all times be a "clearing corporation" as defined in Section 8-102(3) of
the Uniform Commercial Code of the State of New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: With respect to any Distribution Date and (a)
each WF Master Serviced Loan, as defined in the applicable Servicing Agreement
and (b) each WMMSC Master Serviced Loan, a day not later than the 10th day
preceding such Distribution Date, as determined by the WMMSC Master Servicer.
Distribution Date: The 25th day of each month beginning in January
2005 (or, if such day is not a Business Day, the next Business Day).
Document Transfer Event: The 60th day following the day on which
either (i) Xxxxx Fargo Bank is no longer the Servicer of any of the Mortgage
Loans purchased by the Seller pursuant to the Xxxxx Fargo Sale Agreements or
(ii) the senior, unsecured long-term debt rating of Xxxxx Fargo & Company is
less than "BBB-" by Fitch Ratings.
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 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. Notwithstanding
anything in the foregoing to the contrary, an account shall not fail to be an
Eligible Account solely because it is maintained with Xxxxx Fargo Bank, N.A., a
wholly owned subsidiary of Xxxxx Fargo & Co., provided that such subsidiary or
its parent's (A) commercial paper, short-term unsecured debt obligations or
other short-term deposits are at least "P-1" in the case of Moody's and "A-1+"
in the case of S&P, if the deposits are to be held in the account for 30 days or
less, or (B) long-term unsecured debt obligations are rated at least "Aa3" in
the case of Moody's and "AA-" (or "A" (without regard to any plus or minus), if
the short-term unsecured debt obligations are rated at least "A-1+") in the case
of S&P, if the deposits are to be held in the account for more than 30 days.
Eligible Institution: An institution having (i) the highest
short-term debt rating, and one of the two highest long-term debt ratings of the
Rating Agencies, (ii) with respect to any WMMSC Master Servicer Custodial
Account and WMMSC Escrow Account, an unsecured long-term debt rating of at least
one of the two highest unsecured long-term debt ratings of the Rating Agencies,
or (iii) the approval of the Rating Agencies. Such institution may be the WMMSC
Servicer if the applicable Servicing Contract requires the WMMSC Servicer to
provide the WMMSC Master Servicer with written notice on the Business Day
following the date on which the WMMSC Servicer determines that such WMMSC
Servicer's short-term debt and unsecured long-term debt ratings fail to meet the
requirements of the prior sentence. Notwithstanding the foregoing, Washington
Mutual Bank, FA shall be an "Eligible Institution" if the following conditions
are satisfied: (i) Washington Mutual Bank, FA is acting as WMMSC Servicer, (ii)
if S&P is a Rating Agency as defined herein, the long-term unsecured debt
obligations of Washington Mutual Bank, FA are rated no lower than "A-" by S&P
and the short-term unsecured debt obligations of Washington Mutual Bank, FA are
rated no lower than "A-2" by S&P and (iii) if Xxxxx'x is a Rating Agency as
defined herein, the long-term unsecured debt obligations of Washington Mutual
Bank, FA are rated no lower than "A2" by Moody's and the short-term unsecured
debt obligations of Washington Mutual Bank, FA are rated no lower than "P-1" by
Moody's; provided, that if the long-term or short-term unsecured debt
obligations of Washington Mutual Bank, FA are downgraded by any of the Rating
Agencies to a rating lower than the applicable rating specified in this
sentence, Washington Mutual Bank, FA shall cease to be an "Eligible Institution"
five Business Days after notification of such downgrade.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificates: Any Subordinate Certificate.
Escrow Account: A WF Escrow Account or WMMSC Escrow Account.
Escrow Payments: The amounts constituting taxes, assessments,
Primary Mortgage Insurance Policy premiums, fire and hazard insurance premiums
and other payments as may be required to be escrowed by the Mortgagor with the
mortgagee pursuant to the terms of any Mortgage Note or Mortgage.
Events of Default: As defined in Section 8.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any Liquidation Proceeds of such Mortgage
Loan received in the calendar month in which such Mortgage Loan became a
Liquidated Mortgage Loan, net of any amounts previously reimbursed to the
applicable Servicer or the WMMSC Master Servicer, as applicable, as
Nonrecoverable Advance(s) with respect to such Mortgage Loan pursuant to Section
3.11(a)(iv) or Section 3.11(b)(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 (other than a WF Servicer Servicing Advance) was made
(and not reimbursed) up to the Due Date applicable to the Distribution Date
immediately following the calendar month during which such liquidation occurred.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHA: Federal Housing Administration, or any successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
Final Distribution Date: The Distribution Date on which the final
distribution in respect of the Certificates will be made pursuant to Section
10.01.
Financial Market Service: Bloomberg Financial Service and any other
financial information provider designated by the Depositor by written notice to
the Securities Administrator.
FIRREA: The Financial Institutions Reform, Recovery and Enforcement
Act of 1989, as amended.
FNMA: Xxxxxx Xxx, or any successor thereto.
Form 10-K: As defined in Section 3.23.
Fractional Interest: As defined in Section 5.02(d).
Gross Margin: As to each Mortgage Loan, the fixed percentage set
forth in the related Mortgage Note and indicated in the Mortgage Loan Schedule
as the "Gross Margin," which percentage is added to the Index on each Rate
Adjustment Date to determine (subject to rounding, the Periodic Cap and the Rate
Ceiling) the Mortgage Interest Rate on such Mortgage Loan until the next Rate
Adjustment Date.
Group: Any of Group 1, Group 2, Group 3, Group 4 or Group 5.
Group 1: The Group 1 Senior Certificates.
Group 1 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-1
hereto.
Group 1 Senior Certificates: Class 1-A-1, Class 1-A-R and Class
1-A-LR Certificates.
Group 2: The Group 2 Senior Certificates.
Group 2 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-2
hereto.
Group 2 Senior Certificates: Class 2-A-1 Certificates.
Group 3: The Group 3 Senior Certificates.
Group 3 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-3
hereto.
Group 3 Senior Certificates: Class 3-A-1 Certificates.
Group 4: The Group 4 Senior Certificates.
Group 4 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-4
hereto.
Group 4 Senior Certificates: Class 4-A-1 Certificates.
Group 5: The Group 5 Senior Certificates.
Group 5 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-5
hereto.
Group 5 Senior Certificates: Class 5-A-1 and Class 5-A-2
Certificates.
Group REMIC: Any of the WF Group 4 REMIC, WF RCR REMIC, WMMSC Group
1 REMIC and WMMSC Group 4 REMIC, as described in the Preliminary Statement.
Group Subordinate Amount: With respect to any Distribution Date and
any Loan Group, the excess of the Pool Stated Principal Balance for such Loan
Group over the aggregate Class Certificate Balance of the Senior Certificates of
the Related Group immediately prior to such date.
Holder: A Certificateholder.
Independent: When used with respect to any specified Person means
such a Person who (i) is in fact independent of the Depositor and the Master
Servicers, (ii) does not have any direct financial interest or any material
indirect financial interest in the Depositor and the Master Servicers or in an
affiliate of any of them, and (iii) is not connected with the Depositor or the
Master Servicers as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
Index: As to any Mortgage Loan and Rate Adjustment Date, any of the
One-Year CMT Index or the One-Year LIBOR Index. The Index applicable to each
Mortgage Loan will be indicated on the Mortgage Loan Schedule. In the event that
any such Index is no longer available, the applicable Servicer will select a
substitute Index in accordance with the terms of the related Mortgage Note and
in compliance with federal and state law.
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 Primary Mortgage Insurance Policy or any other insurance
policy (including any policy covering any Mortgage Loan or Mortgaged Property,
including without limitation, any hazard insurance policy required pursuant to
Section 3.12, any title insurance policy described in Section 2.04 and any FHA
insurance policies and VA insurance policies), including all riders and
endorsements thereto in effect, including any replacement policy or policies for
any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such Insurance
Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any
other insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: As to any Distribution Date and each Class
of 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.
Investment Depository: JPMorgan Chase Bank, or another bank or trust
company designated from time to time by the WMMSC Master Servicer. The
Investment Depository shall at all times be an Eligible Institution.
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 applicable WF Servicer has certified (in
accordance with the applicable Servicing Agreement) or the WMMSC Master Servicer
has determined in accordance with its Customary Servicing Procedures that it has
received all proceeds it expects to receive in connection with the liquidation
of such Mortgage Loan including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or otherwise or
amounts received in connection with any condemnation or partial release of a
Mortgaged Property and any other proceeds received in connection with an REO
Property, less the sum of related unreimbursed Servicing Fees, WMMSC Master
Servicing Fees and Advances and, in the case of the WMMSC Master Servicer or the
WMMSC Servicer, amounts reimbursable under Section 3.11(a)(ii).
Loan Group: Any of Loan Group 1, Loan Group 2, Loan Group 3, Loan
Group 4 or Loan Group 5.
Loan Group 1: The Group 1 Mortgage Loans.
Loan Group 2: The Group 2 Mortgage Loans.
Loan Group 3: The Group 3 Mortgage Loans.
Loan Group 4: The Group 4 Mortgage Loans.
Loan Group 5: The Group 5 Mortgage Loans.
Loan-to-Value Ratio: With respect to any Mortgage Loan and any date
of determination, the fraction, expressed as a percentage, the numerator of
which is the outstanding principal balance of the related Mortgage Loan at
origination and the denominator of which is the Appraised Value of the related
Mortgaged Property.
Lower-Tier REMICs: The Group REMICs and the Pooling REMIC.
Master Servicer: Either of the WF Master Servicer or the WMMSC
Master Servicer.
Master Servicer's Certificate: The monthly report required of each
Master Servicer pursuant to Section 4.01.
Master Servicer Custodial Account: Either of the WF Master Servicer
Custodial Account or the WMMSC Master Servicer Custodial Account.
Master Servicer Custodial Account Reinvestment Income: Either of the
WF Master Servicer Custodial Account Reinvestment Income or the WMMSC Master
Servicer Custodial Account Reinvestment Income.
Master Servicing Officer: With respect to each Master Servicer, any
officer of such 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
related Master Servicer, as such list may from time to time be amended.
Master Servicing Transfer Costs: All reasonable costs and expenses
(including attorney's fees) incurred by the Trustee or a successor master
servicer in connection with the transfer of master servicing or servicing from a
predecessor master servicer, including, without limitation, any costs or
expenses associated with the complete transfer of all master servicing data or
servicing data and the completion, correction or manipulation of such master
servicing data or servicing data as may be required by the Trustee or successor
master servicer to correct any errors or insufficiencies in the master servicing
data or servicing data or otherwise to enable the Trustee or a successor master
servicer to master service or service, as the case may be, the applicable
Mortgage Loans properly and effectively.
MERS: As defined in Section 2.01(b)(iii).
Monthly Form 8-K: As defined in Section 3.23.
Monthly Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan.
Moody's: Xxxxx'x Investors Service, Inc., or any successor thereto.
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on a Mortgaged Property securing a Mortgage Note or creating a first
lien on a leasehold interest.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: As to any Mortgage Loan, the per annum rate
of interest at which interest accrues on the principal balance of such Mortgage
Loan, as adjusted from time to time in accordance with the provisions of the
related Mortgage Note, which rate is (a) prior to the first Rate Adjustment Date
for each such Mortgage Loan, the initial Mortgage Interest Rate for such
Mortgage Loan indicated on the Mortgage Loan Schedule and (b) from and after
such Rate Adjustment Date, the sum of the applicable Index, as of the Rate
Adjustment Date applicable to such Due Date, and the Gross Margin, rounded as
set forth in such Mortgage Note, subject to the Periodic Cap and the Rate
Ceiling applicable to such Mortgage Loan at any time during the life of such
Mortgage Loan.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated December 29, 2004, 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 related 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 X-0, Xxxxxxx X-0, Xxxxxxx X-0, Xxxxxxx X-0 and Exhibit D-5, 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) whether such Mortgage Loan is a Convertible Mortgage Loan; (xvi) the
Appraised Value; (xvii) the first Rate Adjustment Date; (xviii) the Rate
Ceiling; (xix) the Periodic Cap; (xx) the Gross Margin; (xxi) the closing date
of such Mortgage Loan; (xxii) the Originator of such Mortgage Loan; (xxiii) the
Servicer of such Mortgage Loan as of the Cut-off Date; and (xxiv) the Master
Servicer of such 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.
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 the
applicable Administrative Fee Rate for such Mortgage Loans.
Net WAC: As to any Loan Group and any Distribution Date, the
weighted average of the Net Mortgage Interest Rates of the Mortgage Loans in
such Loan Group (based on Stated Principal Balances of the Mortgage Loans in
such Loan Group on the Due Date in the month preceding the month of such
Distribution Date).
Non-Supported Interest Shortfalls: As to any Distribution Date, the
amount, if any, by which the aggregate of Prepayment Interest Shortfalls exceeds
Compensating Interest for such Distribution Date.
Non-U.S. Person: A Person other than a U.S. Person.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made in respect of a Mortgage Loan which has not been previously
reimbursed and which, in the good faith judgment of the applicable Servicer or
the WMMSC Master Servicer, as applicable, 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 Certificates and the 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
Servicers, as the case may be, and delivered to the Trustee or the Securities
Administrator, as the case may be.
One-Year CMT Index: A rate per annum that is defined to be the
weekly average yield on United States Treasury Securities adjusted to a constant
maturity of one year, as made available by the Federal Reserve Board, published
in Federal Reserve Statistical Release H.15 (519) and most recently available as
of the date 45 days before the applicable Rate Adjustment Date.
One-Year LIBOR Index: A rate per annum that is defined to be the
average of interbank offered rates for one-year U.S. dollar-denominated deposits
in the London market, as published in The Wall Street Journal and most recently
available either (i) as of the first Business Day in the month preceding the
month of the applicable Rate Adjustment Date or (ii) up to the date 45 days
before the applicable Rate Adjustment Date.
Opinion of Counsel: A written opinion of counsel acceptable to the
Trustee if such opinion is delivered to the Trustee, or acceptable to the
Securities Administrator if such opinion is delivered to the Securities
Administrator, who may be counsel for the Depositor or either Master Servicer,
except that any opinion of counsel relating to the qualification of the Trust
Estate as six REMICs or compliance with the REMIC Provisions must be an opinion
of Independent counsel.
Original Fractional Interest: With respect to each of the following
Classes of Subordinate Certificates, the corresponding percentage described
below, as of the Closing Date:
Class B-1 2.50%
Class B-2 1.50%
Class B-3 0.95%
Class B-4 0.65%
Class B-5 0.45%
Class B-6 0.00%
Original Subordinate Certificate Balance: $15,011,237.00.
Originator: For each Mortgage Loan, the Person listed on the
Mortgage Loan Schedule as the originator.
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 (with respect to a WF
Master Serviced Loan) or a Payoff (with respect to a WMMSC Master Serviced Loan)
prior to such Due Date, which did not become a Liquidated Mortgage Loan prior to
such Due Date and which was not purchased from the Trust prior to such Due Date
pursuant to Sections 2.02, 2.04, 2.09 or 3.15(g).
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: As to each Class of interest-bearing
Certificates, the per annum rate set forth or described in the Preliminary
Statement.
Paying Agent: As defined in Section 9.13.
Payoff: Any Mortgagor payment of principal on a WMMSC Master
Serviced Loan equal to the entire outstanding Stated Principal Balance of such
WMMSC Master Serviced Loan, if received in advance of the last scheduled Due
Date for such WMMSC Master Serviced Loan and accompanied by an amount of
interest equal to accrued unpaid interest on the WMMSC Master Serviced Loan to
the date of such payment-in-full.
Payoff Earnings: For any Distribution Date with respect to each
WMMSC Master Serviced Loan on which a Payoff was received by the WMMSC Master
Servicer during the Payoff Period, the aggregate of the interest earned by the
WMMSC Master Servicer from investment of each such Payoff from the date of
receipt of such Payoff until the Business Day immediately preceding the related
Distribution Date (net of investment losses).
Payoff Interest: For any Distribution Date with respect to a WMMSC
Mortgage Loan for which a Payoff was received on or after the first calendar day
of the month of such Distribution Date and before the 15th calendar day of such
month, an amount of interest thereon at the applicable Net Mortgage Interest
Rate from the first day of the month of distribution through the day of receipt
thereof; to the extent (together with Payoff Earnings and the aggregate WMMSC
Master Servicing Fee) not required to be distributed as WMMSC Compensating
Interest on such Distribution Date, Payoff Interest shall be payable to the
WMMSC Master Servicer as additional servicing compensation.
Payoff Period: For the first Distribution Date, the period from the
Cut-off Date through December 14, 2004, inclusive; and for any Distribution Date
thereafter, the period from the 15th day of the Prior Period through the 14th
day of the month of such Distribution Date, inclusive.
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 Cap: For each Mortgage Loan, the applicable limit on
adjustment of the Mortgage Interest Rate for each Rate Adjustment Date specified
in the applicable Mortgage Note and designated as such in the Mortgage Loan
Schedule.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by the
United States, FHLMC, FNMA or any agency or instrumentality of the United
States when such obligations are backed by the full faith and credit of
the United States; provided that such obligations of FHLMC or FNMA shall
be limited to senior debt obligations and mortgage participation
certificates other than investments in mortgage-backed or mortgage
participation securities with yields evidencing extreme sensitivity to the
rate of principal payments on the underlying mortgages, which shall not
constitute Permitted Investments hereunder;
(ii) repurchase agreements on obligations specified in clause (i)
maturing not more than one month from the date of acquisition thereof with
a corporation incorporated under the laws of the United States or any
state thereof rated not lower than "P1" by Xxxxx'x and "A-1+" by S&P;
(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 "P1" by Xxxxx'x and "A-1+" by S&P;
(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 "P1" by Xxxxx'x
and "A-1+" by S&P;
(v) investments in money market funds (including funds of the
Securities Administrator or its affiliates, or funds for which an
affiliate of the Securities Administrator acts as advisor, as well as
funds for which the Securities Administrator and its affiliates may
receive compensation) rated either "Aaa" by Xxxxx'x and "AAAm G" by S&P 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
related Master Servicer or Securities Administrator, as the case may be,
will not affect the qualification of the Trust Estate as six REMICs;
provided, however, that no instrument shall be a Permitted Investment if it
represents either (a) the right to receive only interest payments with respect
to the underlying debt instrument or (b) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest with respect to such instrument provide a yield to
maturity greater than 120% of the yield to maturity at par of such underlying
obligations.
Permitted Transferee: Any Person other than (i) the United States,
or any State or any political subdivision thereof, or any agency or
instrumentality of any of the foregoing, (ii) a foreign government,
international organization or any agency or instrumentality of either of the
foregoing, (iii) an organization which is exempt from tax imposed by Chapter 1
of the Code (including the tax imposed by Section 511 of the Code on unrelated
business taxable income) (except certain farmers' cooperatives described in Code
Section 521), (iv) rural electric and telephone cooperatives described in Code
Section 1381(a)(2)(C), (v) a Person with respect to whom the income on a
Residual Certificate is allocable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of such Person or
any other U.S. Person, and (vi) any other Person so designated by a Master
Servicer based on an Opinion of Counsel to the effect that any transfer to such
Person may cause the Trust or any other Holder of a Residual Certificate to
incur tax liability that would not be imposed other than on account of such
transfer. The terms "United States," "State" and "international organization"
shall have the meanings set forth in Code Section 7701 or successor provisions.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Physical Certificates: The Class 1-A-R, Class 1-A-LR, Class B-4,
Class B-5 and Class B-6 Certificates.
Plan: As defined in Section 6.02(e).
Pool Distribution Amount: As to any Distribution Date and Loan
Group, the sum of, for the Mortgage Loans in such Loan Group, the following
amounts:
(A) with respect to the WF Master Serviced Loans in such Loan Group,
the excess of (a) the sum of (i) the aggregate of (A) the interest portion of
any Monthly Payment on a WF Master Serviced Loan in such Loan Group and the
principal portion of any Monthly Payment on a WF Master Serviced Loan in such
Loan Group due on the Due Date in the month in which such Distribution Date
occurs and which is received prior to the related Determination Date and (B) all
WF Servicer Periodic Advances made by a WF Servicer (or the WF Master Servicer
or the Trustee, as applicable) in respect of such Loan Group and payments of WF
Compensating Interest allocable to such Loan Group made by the applicable
Servicer in respect of such Loan Group and such Distribution Date deposited to
the WF Master Servicer Custodial Account pursuant to Section 3.09(c)(vi); (ii)
all Liquidation Proceeds received on the WF Master Serviced Loans in such Loan
Group during the preceding calendar month and deposited to the WF Master
Servicer Custodial Account pursuant to Section 3.09(c)(iii); (iii) all Principal
Prepayments received on the WF Master Serviced Loans in such Loan Group during
the month preceding the month of such Distribution Date and deposited to the WF
Master Servicer Custodial Account pursuant to Section 3.09(c)(i) during such
period; (iv) in connection with any WF Master Serviced Loans that are Defective
Mortgage Loans or Converted Mortgage Loans in such Loan Group, the aggregate of
the Purchase Prices and Substitution Adjustment Amounts remitted on the related
Remittance Date pursuant to Section 3.09(c)(vii); (v) any other amounts in the
WF Master Servicer Custodial Account deposited therein pursuant to Section
3.09(c)(iv), (v) and (viii) in respect of such Distribution Date and such Loan
Group; (vi) any WF Master Serviced Loan Reimbursement Amount required to be
included pursuant to Section 5.02(a); and (vii) any Recovery with respect to
such Distribution Date over (b) any amounts permitted to be withdrawn from the
WF Master Servicer Custodial Account pursuant to clauses (i) through (viii),
inclusive, of Section 3.11(b) in respect of such Loan Group; and
(B) with respect to the WMMSC Master Serviced Loans, (1) the total
amount of all cash received by or on behalf of the WMMSC Master Servicer with
respect to such WMMSC Master Serviced Loans by the Determination Date for such
Distribution Date and not previously distributed, including Advances made by
WMMSC Servicers under any Servicing Contract, Insurance Proceeds and Liquidation
Proceeds, except:
(a) all scheduled payments of principal and interest collected
but due subsequent to such Distribution Date;
(b) all Curtailments received after the Prior Period;
(c) all Payoffs received after the Payoff Period immediately
preceding such Distribution Date (together with any interest payment
received with such Payoffs to the extent that it represents the
payment of interest accrued on the WMMSC Master Serviced Loans for
the period subsequent to the Prior Period), and, without
duplication, interest which was accrued and received on Payoffs
received during the period from the 1st to the 14th day of the month
of such Distribution Date, which interest shall not be included in
the calculation of the Pool Distribution Amount for any Distribution
Date;
(d) Insurance Proceeds and Liquidation Proceeds received on
the WMMSC Master Serviced Loans in such Loan Group after the Prior
Period;
(e) all amounts in the WMMSC Master Servicer Custodial Account
or the Certificate Account which are due and reimbursable to a WMMSC
Servicer or the WMMSC Master Servicer pursuant to the terms of this
Agreement;
(f) the sum of the WMMSC Master Servicing Fee and the
Servicing Fee for each such WMMSC Master Serviced Loan in such Loan
Group; and
(g) Excess Proceeds;
(2) the sum, to the extent not previously distributed, of the
following amounts, to the extent advanced or received, as applicable, by
the WMMSC Master Servicer:
(a) any Advance made by the WMMSC Master Servicer with respect
to such Distribution Date relating to such WMMSC Master Serviced
Loans in such Loan Group; and
(b) any amounts payable as WMMSC Compensating Interest by
WMMSC on such Distribution Date allocable to WMMSC Master Serviced
Loans in such Loan Group; and
(3) the total amount of any cash received during the Prior Period by
the Securities Administrator or the WMMSC Master Servicer in respect of a
Purchase Obligation under Section 2.02, 2.04 and 2.09 or any permitted
purchase of a Mortgage Loan and any WMMSC Master Serviced Loan
Reimbursement Amounts to the extent specified in Section 5.02(a).
Pool Stated Principal Balance: As to any Distribution Date and Loan
Group, the aggregate Stated Principal Balance of all Mortgage Loans in such Loan
Group that were Outstanding Mortgage Loans immediately following the Due Date in
the month preceding the month in which such Distribution Date occurs.
Pooling REMIC: As defined in the Preliminary Statement, the assets
of which consist of the Uncertificated Group REMIC Regular Interests and such
amounts as shall from time to time be held in the Pooling REMIC Sub-Account.
Pooling REMIC Distribution Amount: As defined in Section 5.02.
Pooling REMIC Sub-Account: The sub-account of the Certificate
Account designated by the Securities Administrator pursuant to Section 3.09(h).
Prepaid Monthly Payment: With respect to each WMMSC Master Serviced
Loan, any Monthly Payment received prior to its scheduled Due Date, which is
intended to be applied to a Mortgage Loan on its scheduled Due Date and held in
the related Servicer Custodial Account until the Withdrawal Date following its
scheduled Due Date.
Prepayment Interest Shortfall: As to any Distribution Date and (a)
each WF Master Serviced 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 and (b) each WMMSC Master
Serviced Loan, the sum of the deficiency in interest as a result of any Payoff
on a WMMSC Master Serviced Loan during the portion of the related Prepayment
Period occurring in the calendar month preceding the month of such Distribution
Date and the interest deficiency from any Curtailment on a WMMSC Master Serviced
Loan during the related Prepayment Period.
Prepayment Period: With respect to any Distribution Date and (i) any
partial prepayments on the Mortgage Loans is the calendar month preceding the
month of such Distribution Date, (ii) any Principal Prepayments In Full on the
WF Master Serviced Loans is the calendar month preceding the month of such
Distribution Date and (iii) any Payoffs on the WMMSC Master Serviced Loans is
the period commencing on the 15th day of the month preceding the month of such
Distribution Date (or on the Cut-off Date, in the case of the initial
Distribution Date) and ending on the 14th day of the month of such Distribution
Date.
Primary Mortgage Insurance Policy: Each policy of primary mortgage
guaranty insurance or any replacement policy therefor with respect to any
Mortgage Loan, in each case issued by an insurer acceptable to FNMA or FHLMC.
Principal Amount: As to any Distribution Date and Loan Group, the
sum of (a) the principal portion of each Monthly Payment due on each Mortgage
Loan in such Loan Group on the related Due Date, (b) the Stated Principal
Balance, as of the date of repurchase, of (i) each WF Master Serviced Loan in
such Loan Group that was repurchased by a WF Servicer pursuant to the applicable
Servicing Agreement or the Seller's Warranties and Servicing Agreement, dated as
of November 1, 2004, by and between BANA and Xxxxx Fargo Bank, as the case may
be, as of such Distribution Date, (ii) each WMMSC Master Serviced Loan that was
repurchased pursuant to a Purchase Obligation during the Prior Period relating
to such Distribution Date, (iii) any Mortgage Loan repurchased by the Seller
pursuant to the Mortgage Loan Purchase Agreement or a Purchase Obligation as of
such Distribution Date or (iv) any Mortgage Loan repurchased by the Depositor
pursuant to a Purchase Obligation, (c) any Substitution Adjustment Amount in
connection with a Defective Mortgage Loan in such Loan Group received with
respect to such Distribution Date, (d) any Liquidation Proceeds allocable to
recoveries of principal of Mortgage Loans in such Loan Group that are not yet
Liquidated Mortgage Loans received by a WF Servicer or the WMMSC Master
Servicer, as applicable, during the Prior Period relating to such Distribution
Date, (e) with respect to each Mortgage Loan in such Loan Group 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 a WF Servicer or the WMMSC Master Servicer, as
applicable, with respect to such Mortgage Loan during such Prior Period, (f) (i)
with respect to each WF Master Serviced Loan, all Principal Prepayments on the
Mortgage Loans in such Loan Group received by a WF Servicer during the Prior
Period and (ii) with respect to each WMMSC Master Serviced Loan, all Payoffs
received on the WMMSC Master Serviced Loans in such Loan Group during the Payoff
Period relating to such Distribution Date and all Curtailments received on the
WMMSC Mortgage Loans in such Loan Group during the Prior Period relating to such
Distribution Date and (g) any other principal recoveries not described in (a)
through (f) of this definition, including any Recoveries, received on the
Mortgage Loans in such Loan Group during the Prior Period relating to such
Distribution Date.
Principal Prepayment: With respect to (a) each WF Master Serviced
Loan, any payment or other recovery of principal on a WF Master Serviced 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 and (b) each WMMSC Master Serviced Loan, any payment of principal
on a WMMSC Master Serviced Loan which constitutes a Payoff or a Curtailment.
Principal Prepayment in Full: Any Principal Prepayment of the entire
principal balance of a WF Master Serviced 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 Amounts allocable to such Class, equal to the
product of the Subordinate Principal Distribution Amounts for such Distribution
Date and a fraction, the numerator of which is the related Class Certificate
Balance thereof and the denominator of which is the aggregate Class Certificate
Balance of the Subordinate Certificates that are not Restricted Classes. The Pro
Rata Share of a Restricted Class shall be 0%. The Pro Rata Share of a Class of
Subordinate Certificates may be computed for each of clause (i) and clause (ii)
of the definition of "Subordinate Principal Distribution Amount" in the event
the Restricted Classes differ with respect to each clause.
Purchase Obligation: An obligation of the Seller, the Depositor or
the WMMSC Master Servicer to purchase Mortgage Loans under the circumstances and
in the manner provided in Section 2.02, 2.04 or 2.09.
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 or a Converted Mortgage Loan repurchased on any date pursuant to Section
2.09, an amount equal to (a) in the case of a WMMSC Master Serviced Loan, 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 which such Mortgage Loan became eligible to be
repurchased 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 and (b) in the case of a WF Master Serviced Loan, 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 WF Master Serviced
Loan of any predatory or abusive lending law, less (x) amounts received or
advanced in respect of such repurchased WF Master Serviced Loan which are being
held in the applicable Servicer Custodial Account for distribution in the month
of repurchase and (y) if the Person repurchasing such Mortgage Loan is servicing
such WF Master Serviced Loan under the related Servicing Agreement, the
Servicing Fee for such Mortgage Loan.
Rate Adjustment Date: As to each Mortgage Loan, the Due Date on
which an adjustment to the Mortgage Interest Rate of such Mortgage Loan becomes
effective under the related Mortgage Note.
Rate Ceiling: The maximum per annum Mortgage Interest Rate permitted
under the related Mortgage Note and indicated on the Mortgage Loan Schedule.
Rating Agency: Each of Xxxxx'x and S&P. If either such organization
or a successor is no longer in existence, "Rating Agency" shall be such
nationally recognized statistical rating organization, or other comparable
Person, as is designated by the Depositor, notice of which designation shall be
given to the Trustee, the Master Servicers 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.
Reimbursement Amount: Either of the WF Master Serviced Loan
Reimbursement Amount or the WMMSC Master Serviced Loan Reimbursement Amount.
Related Group: For Loan Group 1, Group 1; for Loan Group 2, Group 2;
for Loan Group 3, Group 3; for Loan Group 4, Group 4; and for Loan Group 5,
Group 5.
Related Loan Group: For Group 1, Loan Group 1; for Group 2, Loan
Group 2; for Group 3, Loan Group 3; for Group 4, Loan Group 4; and for Group 5,
Loan Group 5.
Relief Act: The Servicemembers Civil Relief Act.
Relief Act Reduction: With respect to any Distribution Date, for any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act or comparable state legislation, the amount,
if any, by which (i) interest collectible on such Mortgage Loan for the most
recently ended calendar month is less than (ii) interest accrued pursuant to the
terms of the Mortgage Note on the same principal amount and for the same period
as the interest collectible on such Mortgage Loan for the most recently ended
calendar month.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Certificate Maturity Date: The "latest possible maturity date"
of the Regular Certificates 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: With respect to (a) each WF Servicer, shall have
the meaning given to the term "Remittance Date" in the applicable Servicing
Agreement and (b) each WMMSC Servicer or the WMMSC Master Servicer and any
Distribution Date, anytime prior to 2:00 p.m. Eastern time on the Business Day
immediately preceding such Distribution Date.
REO Disposition Period: As defined in Section 3.15.
REO Proceeds: Proceeds, net of any related expenses of a Servicer or
the WMMSC 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 a Servicer servicing
the related Mortgage Loan or the WMMSC Master Servicer, as applicable, on behalf
of the Trust through foreclosure or deed-in-lieu of foreclosure in connection
with a defaulted Mortgage Loan.
Representing Party: Solely with respect to the WMMSC Master Serviced
Loans, Washington Mutual Mortgage Securities Corp. or its successor in interest.
Request for Release: The Request for Release submitted by a Servicer
or the WMMSC Master Servicer, as applicable, 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 this
Agreement in respect of such Mortgage Loan.
Residual Certificates: The Class 1-A-R and Class 1-A-LR
Certificates.
Responsible Officer: When used with respect to the Trustee or the
Securities Administrator, any officer of the Corporate Trust Department of the
Trustee or the Securities Administrator, as applicable, including any Senior
Vice President, any Vice President, any Assistant Vice President, any Assistant
Secretary, any Trust Officer or Assistant Trust Officer, or any other officer of
the Trustee or Securities Administrator, as applicable, customarily performing
functions similar to those performed by any of the above designated officers and
having responsibility for the administration of this Agreement.
Restricted Classes: As defined in Section 5.02(d).
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor thereto.
Securities Administrator: Xxxxx Fargo Bank, N.A., and its
successors-in-interest and, if a successor securities administrator is appointed
hereunder, such successor, as securities administrator.
Securities Administrator Fee: As to any Distribution Date and Loan
Group, an amount equal to one-twelfth of the Securities Administrator Fee Rate
multiplied by the aggregate Stated Principal Balance of the Mortgage Loans in
such Loan Group immediately following the Due Date in the month preceding the
month in which such Distribution Date occurs.
Securities Administrator Fee Rate: With respect to each Mortgage
Loan, 0.0100% per annum.
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.
Seller: 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.
Senior Certificates: The Class 1-A-1, Class 1-A-R, Class 1-A-LR,
Class 2-A-1, Class 3-A-1, Class 4-A-1, Class 5-A-1 and Class 5-A-2 Certificates.
Senior Credit Support Depletion Date: The date on which the
aggregate Class Certificate Balance of the Subordinate Certificates is reduced
to zero.
Senior Percentage: With respect to any Distribution Date and Loan
Group, the percentage, carried to six places rounded up, obtained by dividing
(i) the aggregate Class Certificate Balance of the Senior Certificates of the
Related Group immediately prior to such Distribution Date, by (ii) the Pool
Stated Principal Balance of such Loan Group for such Distribution Date.
Senior Prepayment Percentage: For any Distribution Date and Loan
Group during the seven years beginning on the first Distribution Date, 100%. The
Senior Prepayment Percentage for any Loan Group and for any Distribution Date
occurring on or after the seventh anniversary of the first Distribution Date
will, except as provided herein, be as follows: for any Distribution Date in the
first year thereafter, the Senior Percentage for such Loan Group plus 70% of the
Subordinate Percentage for such Loan Group for such Distribution Date; for any
Distribution Date in the second year thereafter, the Senior Percentage for such
Loan Group plus 60% of the Subordinate Percentage for such Loan Group for such
Distribution Date; for any Distribution Date in the third year thereafter, the
Senior Percentage for such Loan Group plus 40% of the Subordinate Percentage for
such Loan Group for such Distribution Date; for any Distribution Date in the
fourth year thereafter, the Senior Percentage for such Loan Group plus 20% of
the Subordinate Percentage for such Loan Group for such Distribution Date; and
for any Distribution Date in the fifth or later years thereafter, the Senior
Percentage for such Loan Group for such Distribution Date unless (i) on any of
the foregoing Distribution Dates the Aggregate Senior Percentage exceeds the
initial Aggregate Senior Percentage, in which case the Senior Prepayment
Percentage for each Loan Group for such Distribution Date will once again equal
100%, (ii) on any Distribution Date before the Distribution Date occurring in
January 2008, the Aggregate Subordinate Percentage for such Distribution Date is
greater than or equal to twice the initial Aggregate Subordinate Percentage, in
which case the Senior Prepayment Percentage for each Loan Group for such
Distribution Date will equal the Senior Percentage for such Loan Group plus 50%
of the Subordinate Percentage for such Loan Group, or (iii) on any Distribution
Date occurring on or after the Distribution Date in January 2008, the Aggregate
Subordinate Percentage for such Distribution Date is greater than or equal to
twice the initial Aggregate Subordinate Percentage, in which case the Senior
Prepayment Percentage for each Loan Group for such Distribution Date will equal
the Senior Percentage for such Loan Group. Notwithstanding the foregoing, no
decrease in the share of the applicable Subordinate Percentage (for calculating
the applicable Senior Prepayment Percentage for any Loan Group) will occur and
the Senior Prepayment Percentage for all Loan Groups will be calculated without
regard to clause (ii) or (iii) in the preceding sentence unless both of the
Senior Step Down Conditions are satisfied.
Senior Principal Distribution Amount: As to any Distribution Date
and Loan Group, the sum of (i) the Senior Percentage for such Loan Group of the
amounts described in clauses (a) through (d) of the definition of "Principal
Amount" for such Distribution Date and Loan Group and (ii) the Senior Prepayment
Percentage for such Loan Group of the amounts described in clauses (e) through
(g) of the definition of "Principal Amount" for such Distribution Date and Loan
Group.
Senior Step Down Conditions: As of any Distribution Date as to which
any decrease in the Senior Prepayment Percentage for any Loan Group applies, (i)
the outstanding principal balance of all Mortgage Loans (including, for this
purpose, any Mortgage Loans in foreclosure, any REO Property and 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
set forth below:
Percentage of
Original Subordinate
Distribution Date Occurring Certificate Balance
--------------------------- -------------------
January 2005 through December 2007 20%
January 2008 through December 2012 30%
January 2013 through December 2013 35%
January 2014 through December 2014 40%
January 2015 through December 2015 45%
January 2016 and thereafter 50%
Servicer: Any WF Servicer or WMMSC Servicer.
Servicing Agreements: Either of the BANA Servicing Agreement or the
Xxxxx Fargo Servicing Agreement.
Servicing Contract: A contract (including the WMMSC Servicing Guide
to the extent incorporated by reference therein) between the WMMSC Master
Servicer and a mortgage loan servicing institution relating to the servicing of
some or all of the WMMSC Master Serviced Loans for the benefit of the
Certificateholders; provided, however, that such contract is consistent with the
servicing provisions of this Agreement.
Servicer Custodial Accounts: With respect to (a) each WF Servicer,
the separate accounts created and maintained by each of the WF Servicers
pursuant to the applicable Servicing Agreement and (b) each WMMSC Servicer, the
custodial account for principal and interest established and maintained by each
WMMSC Servicer and caused by the WMMSC Master Servicer to be established and
maintained pursuant to Section 3.08(a) with the corporate trust department of
the Securities Administrator or another financial institution approved by the
WMMSC Master Servicer such that the rights of the WMMSC Master Servicer, the
Trust, the Trustee, the Securities Administrator and the Certificateholders
thereto shall be fully protected against the claims of any creditors of the
applicable WMMSC Servicer and of any creditors or depositors of the institution
in which such account is maintained, (ii) within FDIC insured accounts (or other
accounts with comparable insurance coverage acceptable to the Rating Agencies)
created, maintained and monitored by a WMMSC Servicer or (iii) in a separate
non-trust account without FDIC or other insurance in an Eligible Institution. In
the event that a Servicer Custodial Account is established pursuant to clause
(ii) of the preceding sentence, amounts held in such Servicer Custodial Account
shall not exceed the level of deposit insurance coverage on such account;
accordingly, more than one Servicer Custodial Account may be established. Any
amount that is at any time not protected or insured in accordance with clause
(b) of the first sentence of this definition of "Servicer Custodial Account"
shall promptly be withdrawn from such Servicer Custodial Account and be remitted
to the WMMSC Master Servicer Custodial Account.
Servicing Fee: With respect to (a) each WF Servicer, as defined in
the applicable Servicing Agreement and (b) each WMMSC Servicer for each WMMSC
Master Serviced Loan and Distribution Date, the amount of the fee payable to the
WMMSC Servicer, which shall, for such Distribution Date, be equal to one-twelfth
of the product of the WMMSC Servicing Fee Rate with respect to such Mortgage
Loan and the Stated Principal Balance of such Mortgage Loan. Such fee for a
WMMSC Servicer shall be payable monthly, computed on the basis of the same
Stated Principal Balance and period respecting which any related interest
payment on a Mortgage Loan is computed. Each WMMSC Servicer's right to receive
the Servicing Fee is limited to, and payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds and
other proceeds, to the extent permitted by Section 3.18) of related Monthly
Payments collected by a WMMSC Servicer, or as otherwise provided under Section
3.18.
Servicing Fee Rate: Either of the WF Servicing Fee Rate or the WMMSC
Servicing Fee Rate.
Servicing File: With respect to (a) each WF Master Serviced Loan, as
defined in the applicable Servicing Agreement and (b) each WMMSC Master Serviced
Loan, a file kept by the WMMSC Master Servicer and/or a WMMSC Servicer in
connection with servicing of a WMMSC Master Serviced Loan.
Servicing Officer: With respect to each WF Servicer, as defined in
the related Servicing Agreement.
Similar Law: As defined in Section 6.02(e).
Stated Principal Balance: As to any Mortgage Loan and 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
(with respect to a WF Master Serviced Loan) or Curtailments (with respect to a
WMMSC Master Serviced Loan) and Liquidation Proceeds allocable to principal
(other than with respect to any Liquidated Mortgage Loan) and to the payment of
principal due on such Due Date and irrespective of any delinquency in payment by
the related Mortgagor, and after giving effect to any Deficient Valuation.
Subordinate Balance Ratio: As of any date of determination, the
ratio among the principal balances of the Class 1-LS Interest, Class 2-LS
Interest, Class 3-LS Interest, Class 4-LS Interest and the Class 5-LS Interest,
equal to the ratio among the Group Subordinate Amount of Loan Group 1, the Group
Subordinate Amount of Loan Group 2, the Group Subordinate Amount for Loan Group
3, the Group Subordinate Amount for Loan Group 4 and the Group Subordinate
Amount of Loan Group 5.
Subordinate Certificates: The Class B Certificates.
Subordinate Percentage: As of any Distribution Date and Loan Group,
100% minus the Senior Percentage for such Loan Group for such Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date and
Loan Group, 100% minus the Senior Prepayment Percentage for such Loan Group and
such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and Loan Group, an amount equal to the sum of (i) the
Subordinate Percentage for such Loan Group of the amounts described in clauses
(a) through (d) of the definition of "Principal Amount" for such Distribution
Date and Loan Group and (ii) the Subordinate Prepayment Percentage for such Loan
Group of the amounts described in clauses (e) through (g) for such Distribution
Date and Loan Group.
Substitute Mortgage Loan: A Mortgage Loan substituted for a
Defective Mortgage Loan which must, on the date of such substitution (i) have a
Stated Principal Balance, after deduction of the principal portion of the
Monthly Payment due in the month of substitution, not in excess of 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 Gross Margin 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; (ix) have the
same Index as the Defective Mortgage Loan; and (x) (a) with respect to each
substitution for a WF Master Serviced Loan, comply with each Mortgage Loan
representation and warranty set forth in the Mortgage Loan Purchase Agreement,
the Servicing Agreements and the Seller's Warranties and Servicing Agreement,
dated as of November 1, 2004, by and between BANA and Xxxxx Fargo Bank, and (b)
with respect to each substitution for a WMMSC Master Serviced Loan, comply with
each Mortgage Loan representation and warranty set forth in this Agreement
relating to the Defective Mortgage Loan. More than one Substitute Mortgage Loan
may be substituted for a Defective Mortgage Loan if such Substitute Mortgage
Loans meet the foregoing attributes in the aggregate.
Substitution Adjustment Amount: As defined in Section 2.02.
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 2004-D 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 six REMIC elections are 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 Agreements,
the Seller's Warranties and Servicing Agreement, dated as of November 1, 2004,
by and between BANA and Xxxxx Fargo Bank, and the Mortgage Loan Purchase
Agreement (including any security interest created thereby) and (v) the Servicer
Custodial Accounts, the Master Servicer Custodial Accounts and the Certificate
Account and such assets that are deposited therein from time to time and any
investments thereof, together with any and all income, proceeds and payments
with respect thereto.
Trustee: Wachovia Bank, National Association, and its
successors-in-interest and, if a successor trustee is appointed hereunder, such
successor, as trustee.
Uncertificated Group REMIC Interest: A regular interest in the one
of the Group REMICs, which is held as an asset of the Pooling REMIC and is
entitled to monthly distributions as provided in Section 5.02(a) hereof. Each of
the WF Group 4 Regular Interest, WF RCR Regular Interest, WMMSC Group 1 Regular
Interest and WMMSC Group 4 Regular Interest are Uncertificated Group REMIC
Interests.
Uncertificated Pooling REMIC Interest: A regular interest in the
Pooling REMIC which is held as an asset of the Upper-Tier REMIC and is entitled
to monthly distributions as provided in Section 5.02(a) hereof. Any of the Class
1-L Interest, Class 1-LS Interest, Class 2-L Interest, Class 2-LS Interest,
Class 3-L Interest, Class 3-LS Interest, Class 4-L Interest, Class 4-LS
Interest, Class 5-L Interest and Class 5-LS Interest are Uncertificated Pooling
REMIC Interests.
Underwriting Guidelines: The published underwriting guidelines of
the originator of any WMMSC Master Serviced Loan in effect at the time such
WMMSC Master Serviced Loan was originated.
Uninsured Cause: Any cause of damage to a Mortgaged Property, the
cost of the complete restoration of which is not fully reimbursable under the
hazard insurance policies required to be maintained pursuant to Section 3.12.
Unscheduled Principal Amount: As to any Distribution Date and Loan
Group, the sum of the amounts described in clauses (e) through (g) of the
definition of "Principal Amount."
Upper-Tier Certificate: Any one of the Senior Certificates (other
than the Class 1-A-LR Certificate) and the Subordinate Certificates.
Upper-Tier Certificate Sub-Account: The sub-account of the
Certificate Account designated by the Securities Administrator pursuant to
Section 3.09(h).
Upper-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Uncertificated Pooling REMIC Interests and such
amounts as shall from time to time be deemed held in the Upper-Tier Certificate
Sub-Account.
U.S. Person: A citizen or resident of the United States, a
corporation or partnership (unless, in the case of a partnership, Treasury
Regulations are adopted that provide otherwise) created or organized in or under
the laws of the United States, any state thereof or the District of Columbia,
including an entity treated as a corporation or partnership for federal income
tax purposes, an estate whose income is subject to United States federal income
tax regardless of its source, or a trust if a court within the United States is
able to exercise primary supervision over the administration of such trust, and
one or more such U.S. Persons have the authority to control all substantial
decisions of such trust (or, to the extent provided in applicable Treasury
Regulations, certain trusts in existence on August 20, 1996 which are eligible
to elect to be treated as U.S. Persons).
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 Holders of
the Residual Certificates 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.
Xxxxx Fargo Bank: Xxxxx Fargo Bank, N.A., in its capacity as
Servicer under the Xxxxx Fargo Servicing Agreement.
Xxxxx Fargo Sale Agreements: The Seller's Warranties and Servicing
Agreement, dated as of November 1, 2004, by and between BANA and Xxxxx Fargo
Bank, N.A. and the Seller's Warranties and Servicing Agreement, dated as of
December 1, 2004, by and between BANA and Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Servicing Agreement: The Seller's Warranties and
Servicing Agreement, dated as of December 1, 2004, by and between BANA and Xxxxx
Fargo Bank.
WF Compensating Interest: With respect to any Distribution Date and
WF Servicer, an amount equal to the lesser of (a) the aggregate Servicing Fee
payable to such WF Servicer for the WF Master Serviced Loans serviced by such WF
Servicer as of the Due Date of the month preceding the month of such
Distribution Date and (b) the aggregate of the Prepayment Interest Shortfalls on
the WF Master Serviced Loans serviced by such WF Servicer resulting from
Principal Prepayments on the WF Master Serviced Loans during the related
Prepayment Period.
WF Escrow Account: As defined in Section 3.08(a).
WF Group 4 Call Right Mortgage Loans: The WF Master Serviced Loans
in Loan Group 4.
WF Group 4 REMIC: As defined in the Preliminary Statement, the
assets of which consist of the WF Group 4 Call Right Mortgage Loans, such
amounts as shall be held in Sub-Account WF-4, the Insurance Policies, if any,
relating to a WF Group 4 Call Right Mortgage Loan and property which secured a
WF Group 4 Call Right Mortgage Loan and which has been acquired by foreclosure
or deed in lieu of foreclosure.
WF Master Serviced Loan: Any Mortgage Loan that is master serviced
by the WF Master Servicer, as indicated in the Mortgage Loan Schedule.
WF Master Serviced Loan Reimbursement Amount: As defined in Section
2.02.
WF Master Servicer: Xxxxx Fargo Bank, N.A., and its
successors-in-interest and, if a successor master servicer is appointed
hereunder, such successor, as master servicer.
WF Master Servicer Custodial Account: The account or accounts
created and maintained by the WF Master Servicer pursuant to Section 3.09 which
must be an Eligible Account.
WF 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 WF Master
Servicer Custodial Account.
WF RCR REMIC: As defined in the Preliminary Statement, the assets of
which consist of the Group 2, Group 3 and Group 5 Mortgage Loans, such amounts
as shall be held in Sub-Account WF-RCR, the insurance policies, if any, relating
to a Group 2, Group 3 or Group 5 Mortgage Loan and property which secured a
Group 2, Group 3 or Group 5 Mortgage Loan and which has been acquired by
foreclosure or deed in lieu of foreclosure.
WF Remaining Call Right Mortgage Loans: The Group 2, Group 3 and
Group 5 Mortgage Loans.
WF Servicer: Either of BANA or Xxxxx Fargo Bank, each in their
capacity as servicer of the WF Mortgage Loans, or any successor servicer
appointed as herein provided.
WF Servicer Periodic Advance: With respect to each WF Servicer,
shall have the meaning given to term "Monthly Advance" in the applicable
Servicing Agreement.
WF Servicer Servicing Advance: With respect to each WF Servicer,
shall have the meaning given to the term "Servicing Advances" in the applicable
Servicing Agreement.
WF Servicing Fee Rate: With respect to each WF Master Serviced Loan,
as defined in the applicable Servicing Agreement.
Withdrawal Date: Any day during the period commencing on the 18th
day of the month of the related Distribution Date (or if such day is not a
Business Day, the immediately preceding Business Day) and ending on the last
Business Day prior to the 21st day of the month of such Distribution Date. The
"related Distribution Date" for any Withdrawal Date is the Distribution Date
immediately following the related Withdrawal Date.
WMMSC Advance: The payment required to be made by the WMMSC Master
Servicer with respect to any Distribution Date pursuant to Section 3.21 or, as
applicable, by a WMMSC Servicer pursuant to a Servicing Contract.
WMMSC Compensating Interest: With respect to any Distribution Date
and the WMMSC Master Servicer, an amount equal to the least of (a) the sum of
(i) the aggregate WMMSC Master Servicing Fee payable with respect to such
Distribution Date relating to the WMMSC Master Serviced Loans, (ii) the
aggregate Payoff Earnings with respect to such Distribution Date and (iii) the
aggregate Payoff Interest with respect to such Distribution Date, (b) the
aggregate Prepayment Interest Shortfall resulting from Payoffs on the WMMSC
Master Serviced Loans for such Distribution Date and (c) one-twelfth of 0.125%
of the Stated Principal Balance of the WMMSC Master Serviced Loans.
WMMSC Escrow Account: The WMMSC Escrow Account established and
maintained by each WMMSC Servicer and caused by the WMMSC Master Servicer to be
established and maintained pursuant to Section 3.08(b) with the corporate trust
department of the Securities Administrator or another financial institution
approved by the WMMSC Master Servicer such that the rights of the WMMSC Master
Servicer, the Trust, the Trustee, the Securities Administrator and the
Certificateholders thereto shall be fully protected against the claims of any
creditors of the applicable WMMSC Servicer and of any creditors or depositors of
the institution in which such account is maintained, (b) within FDIC insured
accounts (or other accounts with comparable insurance coverage acceptable to the
Rating Agencies) created, maintained and monitored by a WMMSC Servicer or (c) in
a separate non-trust account without FDIC or other insurance in an Eligible
Institution. In the event that a WMMSC Escrow Account is established pursuant to
clause (b) of the preceding sentence, amounts held in such WMMSC Escrow Account
shall not exceed the level of deposit insurance coverage on such account;
accordingly, more than one WMMSC Escrow Account may be established. Any amount
that is at any time not protected or insured in accordance with the first
sentence of this definition of "WMMSC Escrow Account" shall promptly be
withdrawn from such WMMSC Escrow Account and be remitted to the WMMSC Master
Servicer Custodial Account.
WMMSC Group 1 REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Group 1 Mortgage Loans, such amounts as shall be
held in Sub-Account WMMSC-1, the Insurance Policies, if any, relating to a Group
1 Mortgage Loan and property which secured a Group 1 Mortgage Loan and which has
been acquired by foreclosure or deed in lieu of foreclosure.
WMMSC Group 4 Call Right Mortgage Loans: The WMMSC Master Serviced
Loans in Loan Group 4.
WMMSC Group 4 REMIC: As defined in the Preliminary Statement, the
assets of which consist of the WMMSC Group 4 Call Right Mortgage Loans, such
amounts as shall be held in Sub-Account WMMSC-4, the Insurance Policies, if any,
relating to a WMMSC Group 4 Call Right Mortgage Loan and property which secured
a WMMSC Group 4 Call Right Mortgage Loan and which has been acquired by
foreclosure or deed in lieu of foreclosure.
WMMSC Master Serviced Loan: Any Mortgage Loan that is master
serviced by the WMMSC Master Servicer, as indicated in the Mortgage Loan
Schedule.
WMMSC Master Serviced Loan Reimbursement Amount: As defined in
Section 2.04.
WMMSC Master Servicer: Washington Mutual Mortgage Securities Corp.,
and its successors-in-interest and, if a successor master servicer is appointed
hereunder, such successor, as master servicer.
WMMSC Master Servicer Custodial Account: The commingled account
(which shall be commingled only with investment accounts related to a series of
pass-through certificates with a class of certificates which has a rating equal
to the highest of ratings of the Certificates) maintained by the WMMSC Master
Servicer in the trust department of the Investment Depository pursuant to
Section 3.09 and which bears a designation acceptable to the Rating Agencies.
WMMSC 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 WMMSC
Master Servicer Custodial Account.
WMMSC Master Servicing Fee: With respect to each WMMSC Master
Serviced Loan and Distribution Date, the amount of the fee payable to the WMMSC
Master Servicer from the Certificate Account, WMMSC Master Servicer Custodial
Account or Servicer Custodial Account, which shall, for such Distribution Date,
be equal to one-twelfth of the product of the WMMSC Master Servicing Fee Rate
with respect to such WMMSC Master Serviced Loan and the Stated Principal Balance
of such WMMSC Mortgage Loan. Such fee shall be payable monthly, computed on the
basis of the same Stated Principal Balance and period respecting which any
related interest payment on a WMMSC Master Serviced Loan is computed. The WMMSC
Master Servicer's right to receive the WMMSC Master Servicing Fee is limited to,
and payable solely from, the interest portion (including recoveries with respect
to interest from Liquidation Proceeds and other proceeds, to the extent
permitted by Section 3.11) of related Monthly Payments collected by the WMMSC
Master Servicer, or as otherwise provided under Section 3.11.
WMMSC Master Servicing Fee Rate: With respect to each WMMSC Master
Serviced Loan, 0.05% per annum.
WMMSC Servicer: Any mortgage loan servicing institution to which the
WMMSC Master Servicer has delegated servicing duties with respect to any WMMSC
Master Serviced Loan under a Servicing Contract. With respect to any Mortgage
Loan for which the WMMSC Master Servicer has not entered into a Servicing
Contract or as to which the related Servicing Contract has terminated (other
than pursuant to Section 8.01), the WMMSC Master Servicer shall be deemed to be
the Servicer of such WMMSC Master Serviced Loan for all purposes of this
Agreement.
WMMSC Servicing Fee Rate: With respect to each WMMSC Master Serviced
Loan, 0.375% per annum.
WMMSC Servicing Guide: The published Washington Mutual Servicer
Guide, as in effect from time to time.
Section 1.02 Interest Calculations. All calculations of interest
will be made on a 360-day year consisting of twelve 30-day months. All dollar
amounts calculated hereunder shall be rounded to the nearest xxxxx with one-half
of one xxxxx being rounded down.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee on behalf of the Trust
for the benefit of the Certificateholders, without recourse, all the right,
title and interest of the Depositor in and to the Mortgage Loans, including all
interest and principal received on or with respect to the Mortgage Loans (other
than payments of principal and interest due and payable on the Mortgage Loans on
or before the Cut-off Date), the Depositor's rights under the Mortgage Loan
Purchase Agreement, including the rights of the Depositor as assignee of the
Seller with respect to the Seller's rights under (i) the Seller's Warranties and
Servicing Agreement, dated as of November 1, 2004, by and between BANA and Xxxxx
Fargo Bank and (ii) the Seller's Warranties and Servicing Agreement, dated as of
December 1, 2004, by and between BANA and Xxxxx Fargo Bank, and the Depositor's
rights under the BANA 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 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 or (iii) the
Massachusetts Predatory Home Loan Practices Act effective November 7, 2004.
(b) In connection with such transfer and assignment, the Depositor
has delivered or caused to be delivered to the Trustee and 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 Wachovia Bank,
National Association, as trustee for holders of Banc of America Funding
Corporation Mortgage Pass-Through Certificates, Series 2004-D, 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 and other than with respect to the
Mortgage Loans purchased by the Seller under the Xxxxx Fargo Sale
Agreements, the original recorded Mortgage with evidence of a recording
thereon, or if any such Mortgage has not been returned from the applicable
recording office or has been lost, or if such public recording office
retains the original recorded Mortgage, a copy of such Mortgage certified
by the Depositor as being a true and correct copy of the Mortgage;
(iii) subject to the provisos at the end of this paragraph, a duly
executed Assignment of Mortgage to "Wachovia Bank, National Association,
as trustee for the holders of Banc of America Funding Corporation Mortgage
Pass-Through Certificates, Series 2004-D" (which may be included in a
blanket assignment or assignments), together with, except as provided
below and other than with respect to the Mortgage Loans purchased by the
Seller under the Xxxxx Fargo Sale Agreements, originals of all interim
recorded assignments of such mortgage or a copy of such interim assignment
certified by the Depositor as being a true and complete copy of the
original recorded intervening assignments of Mortgage (each such
assignment, when duly and validly completed, to be in recordable form and
sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which the assignment relates); provided
that, if the related Mortgage has not been returned from the applicable
public recording office, such Assignment of Mortgage may exclude the
information to be provided by the recording office; and provided, further,
if the related Mortgage has been recorded in the name of Mortgage
Electronic Registration Systems, Inc. ("MERS") or its designee, no
Assignment of Mortgage in favor of the Trustee will be required to be
prepared or delivered and instead, the WMMSC Master Servicer shall, in the
case of the WMMSC Master Serviced Loans, or, in the case of the WF Master
Serviced Loans, the WF Master Servicer shall enforce the obligations of
the applicable WF Servicer to, take all actions as are necessary to cause
the Trust to be shown as the owner of the related Mortgage Loan on the
records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS;
(iv) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon, if any;
(v) other than with respect to the Mortgage Loans purchased by the
Seller under the Xxxxx Fargo Sale Agreements, 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 (other than
with respect to any Mortgage Loan secured by Cooperative Stock purchased
by the Seller under the Xxxxx Fargo Sale Agreements), 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 Trustee or the Custodian on behalf of the
Trustee, as the case may be, a copy of such Assignment of Mortgage in blank
rather than in the name of the Trustee and has caused the applicable WF Servicer
(in the case of the WF Master Serviced Loans) or the WMMSC Master Servicer (in
the case of the WMMSC Master Serviced Loans) 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), 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
any, has not been delivered to any of the related WF Servicer, the WMMSC Master
Servicer, the Seller or the Depositor, as applicable, by the applicable title
insurer in the case of clause (v) above, the Depositor shall promptly deliver or
cause to be delivered to the Trustee or the Custodian on behalf of the Trustee,
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, the applicable WF Servicer
(in the case of the WF Master Serviced Loans) or the WMMSC Master Servicer (in
the case of the WMMSC Master Serviced Loans) 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 (in the case of the WF Master Serviced Loans) or
the WMMSC Master Servicer (in the case of the WMMSC Master Serviced Loans) 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.
Upon discovery by the Depositor or notice from the WF Servicer, WF
Master Servicer or Securities Administrator that a Document Transfer Event has
occurred, the Depositor shall, with respect to Mortgage Loans purchased by the
Seller under the Xxxxx Fargo Sale Agreements, deliver or cause to be delivered
to the Trustee within 60 days copies (which may be in electronic form mutually
agreed upon by the Depositor and the Trustee) of the following additional
documents or instruments to the Mortgage File with respect to each such Mortgage
Loan; provided, however, that originals of such documents or instruments shall
be delivered to the Trustee if originals are required under the law in which the
related Mortgaged Property is located in order to exercise all remedies
available to the Trust under applicable law following default by the related
Mortgagor:
(1) other than if the related Mortgage has been recorded in the name
of MERS or its designee, originals of all interim recorded assignments of such
mortgage or a copy of such interim assignments certified by the Depositor as
being a true and complete copy of the original recorded intervening assignments
of Mortgage (each such assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and transfer to the
assignee thereof, under the Mortgage to which the assignment relates);
(2) the original or a certified copy of the lender's title insurance
policy;
(3) the original Mortgage with evidence of recording thereon, and
the original recorded power of attorney, if the Mortgage was executed pursuant
to a power of attorney, with evidence of recording thereon or, if such Mortgage
or power of attorney has been submitted for recording but has not been returned
from the applicable public recording office, has been lost or is not otherwise
available, a copy of such Mortgage or power of attorney, as the case may be,
certified to be a true and complete copy of the original submitted for
recording; and
(4) 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).
With respect to each WF Master Serviced Loan, as promptly as
practicable subsequent to such transfer and assignment, the WF Master Servicer
shall (except for any Mortgage which has been recorded in the name of MERS or
its designee) enforce the obligations of the related WF Servicer pursuant to the
related Servicing Agreement to (I) cause each Assignment of Mortgage to be in
proper form for recording in the appropriate public office for real property
records within the time period required in the applicable Servicing Agreement
and (II) at the Depositor's expense, cause to be delivered for recording in the
appropriate public office for real property records the Assignments of the
Mortgages to the Trustee, except that, with respect to any Assignment of a
Mortgage as to which the related WF Servicer has not received the information
required to prepare such assignment in recordable form, such WF Servicer's
obligation to do so and to deliver the same for such recording shall be as soon
as practicable after receipt of such information and in accordance with the
applicable Servicing Agreement.
With respect to each WMMSC Master Serviced Loan, as promptly as
practicable subsequent to such transfer and assignment and in any event, within
30 days thereafter, the WMMSC Master Servicer shall (except for any Mortgage
which has been recorded in the name of MERS or its designee), (I) cause each
Assignment of Mortgage to be in proper form for recording in the appropriate
public office for real property records within 30 days of the Closing Date and
(II) at the Depositor's expense, cause to be delivered for recording in the
appropriate public office for real property records the Assignments of the
Mortgages to the Trustee, except that, with respect to any Assignment of a
Mortgage as to which the WMMSC Master Servicer has not received the information
required to prepare such assignment in recordable form, the WMMSC Master
Servicer's obligation to do so and to deliver the same for such recording shall
be as soon as practicable after receipt of such information and in any event
within 30 days after the receipt thereof.
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 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 applicable
WF Servicer to remit to the WF Master Servicer for deposit in the WF Master
Servicer Custodial Account (with respect to each WF Master Serviced Loan) or the
WMMSC Master Servicer to deposit in the WMMSC Master Servicer Custodial Account
(with respect to each WMMSC Master Serviced Loan) the portion of such payment
that is required to be deposited in the such account pursuant to Section 3.09.
Section 2.02 Acceptance by the Trustee or Custodian of the Mortgage
Loans. Subject to the provisions of the following paragraph, the Trustee
declares that it, or the 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 and cause the Custodian to deliver to the Depositor and
the Master Servicers 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, each such Person has received the original
Mortgage Note relating to each of the Mortgage Loans for which such Person is
acting as custodian listed on the Mortgage Loan Schedule.
Within 90 days after the execution and delivery of this Agreement,
the Trustee shall review, and 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 Servicers a certification in the form of Exhibit N hereto (the "Final
Certification") to the effect that, as to each Mortgage Loan for which it is
acting as custodian 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, the Trustee
shall promptly notify or shall cause the Custodian promptly to notify, as the
case may be (and in no event more than 30 days after completion of the review),
the Master Servicer and the Depositor of such Mortgage Loan. The Depositor
hereby covenants and agrees that it will promptly correct or cure such defect
within 90 days from the date it was so notified of such defect and, if the
Depositor does not correct or cure such defect within such period, the Depositor
will either (a) substitute for the related Mortgage Loan a Substitute Mortgage
Loan, which substitution shall be accomplished in the manner and subject to the
conditions set forth below or (b) purchase such Mortgage Loan from the 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 shall occur within 90
days of when such defect was discovered if such defect will cause the Mortgage
Loan not to be a "qualified mortgage" within the meaning of Section 860G(a)(3)
of the Code.
If during the period of such review by the Trustee of any WF Master
Serviced Loan, the Depositor, the WF Master Servicer, the Securities
Administrator or the Trustee discovers a breach by a WF Servicer or the Seller
of any representation, warranty or covenant under the Xxxxx Fargo Sale
Agreements, the Servicing Agreements or the Mortgage Loan Purchase Agreement in
respect of any WF Master Serviced Loan and such breach materially adversely
affects the interest of the Certificateholders in the related WF Master Serviced
Loan (provided that any such breach that causes the WF Master Serviced Loan not
to be a "qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code shall be deemed to materially and adversely affect the interests of the
Certificateholders), then such party shall promptly so notify the WF Master
Servicer, the Seller, such WF Servicer and the Depositor of such breach and
request that the applicable WF Servicer or the Seller, as the case may be, cure
such breach within 90 days of its discovery or its receipt of notice of any such
breach. If the Seller or the applicable WF Servicer, as applicable, does not
cure such breach in all material respects during such period, the Trustee shall
enforce the applicable WF Servicer's or Seller's obligation, as the case may be,
under the applicable Servicing Agreement, the Xxxxx Fargo Sale Agreements or the
Mortgage Loan Purchase Agreement, as applicable, and cause the applicable WF
Servicer or Seller, as applicable, to either (a) solely in the case of the
Seller, substitute for the related WF Master Serviced 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 WF Master Serviced 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.
It is understood that the scope of the Trustee and 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 a related WF Servicer or the Seller, the Trustee shall enforce the
rights of the Trust under the Xxxxx Fargo Sale Agreements, the Servicing
Agreements and the Mortgage Loan Purchase Agreement for the benefit of the
Certificateholders. In the event of a breach of the representations or
warranties with respect to the WF Master Serviced Loans set forth in a Servicing
Agreement or a Xxxxx Fargo Sale 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 WF Master Serviced
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 Seller for all costs or
damages incurred by the Trust as a result of the violation of such law (such
amount, the "WF Master Serviced Loan Reimbursement Amount"), but in the case of
a breach of a representation set forth in clauses (k) or (o) of paragraph 3 of
the Mortgage Loan Purchase Agreement, only to the extent the applicable WF
Servicer does not so reimburse the Trust. It is understood and agreed that,
except for any indemnification provided in the Servicing Agreements and the
Xxxxx Fargo Sale Agreements and the payment of any WF Master Serviced Loan
Reimbursement Amount, the obligation of a WF Servicer or the Seller to cure or
to repurchase (or in the case of the Seller, to substitute for) any WF Master
Serviced Loan as to which a document is missing, a material defect in a
constituent document exists or as to which such a breach has occurred and is
continuing shall constitute the sole remedy against a WF Servicer or the Seller
in respect of such omission, defect or breach available to the Trustee on behalf
of the Certificateholders.
With respect to the representations and warranties relating to the
WF Master Serviced Loans set forth in the Mortgage Loan Purchase Agreement that
are made to the best of the Seller's knowledge or as to which the Seller had no
knowledge, if it is discovered by the Depositor, the WF 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 WF Master Serviced Loan then, notwithstanding
the Seller's lack of knowledge with respect to the substance of such
representation or warranty being inaccurate as the time the representation or
warranty was made, such inaccuracy shall be deemed a breach of the applicable
representation or warranty.
It is understood and agreed that the representations and warranties
relating to the WF Master Serviced Loans set forth in the Mortgage Loan Purchase
Agreement shall survive delivery of the Mortgage Files to the Trustee and shall
inure to the benefit of the Certificateholders notwithstanding any restrictive
or qualified endorsement or assignment. It is understood and agreed that the
obligations of the Seller set forth in this Section 2.02 to cure, substitute for
or repurchase a WF Master Serviced Loan pursuant to the Mortgage Loan Purchase
Agreement constitute the sole remedies available to the Certificateholders and
to the Trustee on their behalf respecting a breach of the representations and
warranties contained in the Mortgage Loan Purchase Agreement.
The representations and warranties of each WF Servicer with respect
to the applicable WF Master Serviced Loans in the related Servicing Agreement or
the Xxxxx Fargo Sale Agreements, which have been assigned to the Trustee
hereunder, were made as of the date specified in such Servicing Agreement or
Xxxxx Fargo Sale Agreement, as the case may be. To the extent that any fact,
condition or event with respect to a WF Master Serviced Loan constitutes a
breach of both (i) a representation or warranty of a WF Servicer under the
related Servicing Agreement or Xxxxx Fargo Sale Agreement and (ii) a
representation or warranty of the Seller under the Mortgage Loan Purchase
Agreement, the only right or remedy of the Trustee or of any Certificateholder
shall be the Trustee's right to enforce the obligations of the applicable WF
Servicer under any applicable representation or warranty made by it. The Trustee
acknowledges that the Seller shall have no obligation or liability with respect
to any breach of a representation or warranty made by it with respect to the
Mortgage Loans if the fact, condition or event constituting such breach also
constitutes a breach of a representation or warranty made by the applicable WF
Servicer in the applicable Servicing Agreement or Xxxxx Fargo Sale Agreement,
without regard to whether such WF 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 WF Master Serviced
Loans (except as set forth in Section 2.04(b)) under any circumstances.
With respect to each Substitute Mortgage Loan the Seller shall
deliver to the Trustee (or a Custodian on behalf of the Trustee), for the
benefit of the Certificateholders, the Mortgage Note, the Mortgage, the related
Assignment of Mortgage (except for any Mortgage which has been recorded in the
name of MERS or its designee), and such other documents and agreements as are
otherwise required by Section 2.01, with the Mortgage Note endorsed and the
Mortgage assigned as required by Section 2.01. No substitution is permitted to
be made in any calendar month after the Determination Date for such month.
Monthly Payments due with respect to any such Substitute Mortgage Loan in the
month of substitution shall not be part of the Trust Estate and will be retained
by the Depositor. For the month of substitution, distributions to
Certificateholders will include the Monthly Payment due for such month on any
Defective Mortgage Loan for which the Depositor has substituted a Substitute
Mortgage Loan.
The related 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 related Master Servicer shall
deliver the amended Mortgage Loan Schedule to the Securities Administrator, the
Trustee and the Custodian. Upon such substitution of a WF Master Serviced Loan
by the Seller, each Substitute Mortgage Loan shall be subject to the terms of
this Agreement in all respects, and the Seller shall be deemed to have made to
the Trustee with respect to such Substitute Mortgage Loan, as of the date of
substitution, the representations and warranties made pursuant to paragraph 4 of
the Mortgage Loan Purchase Agreement. Upon such substitution of a WMMSC Master
Serviced Loan by the Representing Party, each Substitute Mortgage Loan shall be
subject to the terms of this Agreement in all respects, and the Representing
Party shall be deemed to have made to the Trustee with respect to such
Substitute Mortgage Loan, as of the date of substitution, the representations
and warranties made pursuant to Section 2.04(a) and (b) hereof. Upon any such
substitution and the deposit to applicable 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 Seller or the Representing Party, as applicable,
and shall execute and deliver at the Seller's or the Representing Party's
direction such instruments of transfer or assignment prepared by the Seller or
the Representing Party, as applicable, in each case without recourse, as shall
be necessary to vest title in the Seller or Representing Party, or its designee,
to the Trustee's interest in any Defective Mortgage Loan substituted for
pursuant to this Section 2.02.
For any month in which the Seller or Representing Party 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 Seller or Representing Party, as
the case may be, in a Loan Group as of the date of substitution is less than the
aggregate Stated Principal Balance of all such Defective Mortgage Loans in a
Loan Group substituted by the Seller or Representing Party (after application of
the principal portion of the Monthly Payments due in the month of substitution)
(the "Substitution Adjustment Amount" for such Loan Group) plus an amount equal
to the aggregate of any unreimbursed Advances with respect to such Defective
Mortgage Loans shall be remitted by the Seller or the Representing Party to the
applicable Master Servicer for deposit to the related 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 related 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 related
Master Servicer's possession from time to time.
The Trustee or the Custodian, on behalf of the Trustee, shall be
under no duty or obligation (i) to inspect, review or examine any such
documents, instruments, certificates or other papers to determine that they are
genuine, enforceable, or appropriate for the represented purpose or that they
are other than what they purport to be on their face or (ii) to determine
whether any Mortgage File should include any of the documents specified in
Section 2.01(b)(iv), (vi), (vii), (viii) and (ix). In connection with making the
certifications required hereunder, to the extent a title search or opinion of
counsel has been provided in lieu of a title policy for any Mortgage Loan, the
Trustee shall only be responsible for confirming that a title search or opinion
of counsel has been provided for such Mortgage Loan.
Section 2.03 Representations, Warranties and Covenants of the Master
Servicers.
(a) The WF Master Servicer hereby makes the following
representations and warranties to the Depositor, the WMMSC Master Servicer, the
Securities Administrator and the Trustee, as of the Closing Date:
(i) The WF Master Servicer is a national banking association duly
chartered and validly existing in good standing under the laws of the
United States of America and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and in good
standing in each of the states where a Mortgaged Property securing a WF
Master Serviced Loan is located if the laws of such state require
licensing or qualification in order to conduct business of the type
conducted by the WF Master Servicer. The WF 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 WF 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 WF 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 WF Master Servicer to
make this Agreement valid and binding upon the WF 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 WF 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 WF Master Servicer
and will not result in the breach of any term or provision of the charter
or by-laws of the WF Master Servicer or result in the breach of any term
or provision of, or conflict with or constitute a default under or result
in the acceleration of any obligation under, any agreement, indenture or
loan or credit agreement or other instrument to which the WF Master
Servicer or its property is subject, or result in the violation of any
law, rule, regulation, order, judgment or decree to which the WF Master
Servicer or its property is subject.
(iv) There is no action, suit, proceeding or investigation pending
or, to the best knowledge of the WF Master Servicer, threatened against
the WF 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 WF Master Servicer, or in
any material impairment of the right or ability of the WF Master Servicer
to carry on its business substantially as now conducted or which would
draw into question the validity of this Agreement or the WF Master
Serviced Loans or of any action taken or to be taken in connection with
the obligations of the WF Master Servicer contemplated herein, or which
would materially impair the ability of the WF Master Servicer to perform
under the terms of this Agreement.
(b) The WMMSC Master Servicer hereby makes the following
representations and warranties to the Depositor, the WF Master Servicer, the
Securities Administrator and the Trustee, as of the Closing Date:
(i) The WMMSC Master Servicer is a corporation duly organized,
validly existing, and in good standing under the laws of the state of
Delaware 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 WMMSC Master Serviced
Loan is located if the laws of such state require licensing or
qualification in order to conduct business of the type conducted by the
WMMSC Master Servicer. The WMMSC 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 WMMSC 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 WMMSC 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 creditors' rights generally or creditors
of national banks 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 WMMSC Master Servicer to make this
Agreement valid and binding upon the WMMSC 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 WMMSC 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 WMMSC Master
Servicer and will not result in the breach of any term or provision of the
certificate of incorporation or by-laws of the WMMSC Master Servicer or
result in the breach of any term or provision of, or conflict with or
constitute a default under or result in the acceleration of any obligation
under, any agreement, indenture or loan or credit agreement or other
instrument to which the WMMSC Master Servicer or its property is subject,
or result in the violation of any law, rule, regulation, order, judgment
or decree to which the WMMSC Master Servicer or its property is subject.
(iv) There is no action, suit, proceeding or investigation pending
or, to the best knowledge of the WMMSC Master Servicer, threatened against
the WMMSC 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 WMMSC Master Servicer, or
in any material impairment of the right or ability of the WMMSC Master
Servicer to carry on its business substantially as now conducted or which
would draw into question the validity of this Agreement or the WMMSC
Master Serviced Loans or of any action taken or to be taken in connection
with the obligations of the WMMSC Master Servicer contemplated herein, or
which would materially impair the ability of the WMMSC Master Servicer to
perform under the terms of this Agreement.
The representations and warranties made pursuant to this Section
2.03 shall survive delivery of the respective Mortgage Files to the Trustee for
the benefit of the Certificateholders.
Section 2.04 Representations and Warranties as to the Mortgage
Loans.
(a) The Representing Party hereby represents and warrants to the
Trustee with respect to the WMMSC Master Serviced Loans or each WMMSC Master
Serviced Loan, as the case may be, as of the date hereof or such other date set
forth herein that as of the Closing Date:
(i) The information set forth in the Mortgage Loan Schedule relating
to the WMMSC Master Serviced Loans was true and correct in all material
respects at the date or dates respecting which such information is
furnished;
(ii) As of the Closing Date, each Mortgage relating to a WMMSC
Master Serviced Loan that is not a Cooperative Loan is a valid and
enforceable (subject to Section 2.04(a)(xv)) first lien on an unencumbered
estate in fee simple or (if the related WMMSC Master Serviced Loan is
secured by the interest of the Mortgagor as a lessee under a ground lease)
leasehold estate in the related Mortgaged Property subject only to (a)
liens for current real property taxes and special assessments; (b)
covenants, conditions and restrictions, rights of way, easements and other
matters of public record as of the date of recording such Mortgage, such
exceptions appearing of record being acceptable to mortgage lending
institutions generally or specifically reflected in the appraisal obtained
in connection with the origination of the WMMSC Master Serviced Loan; (c)
exceptions set forth in the title insurance policy relating to such
Mortgage, such exceptions being acceptable to mortgage lending
institutions generally; and (d) other matters to which like properties are
commonly subject which do not materially interfere with the benefits of
the security intended to be provided by the Mortgage;
(iii) As of the day prior to the Cut-off Date, all payments due on
each WMMSC Master Serviced Loan had been made and no more than 0.55% of
the WMMSC Master Serviced Loans (by aggregate Stated Principal Balance as
of the Cut-off Date) had been delinquent (i.e., was more than 30 days past
due) more than once in the preceding 12 months and any such delinquency
lasted for no more than 30 days, no more than 0.26% of the WMMSC Master
Serviced Loans (by aggregate Stated Principal Balance as of the Cut-off
Date) had been delinquent more than twice in the preceding 12 months and
such delinquencies lasted for no more than 30 days and no WMMSC Master
Serviced Loan had been delinquent more than three times in the preceding
12 months.
(iv) As of the Closing Date, there is no late assessment for
delinquent taxes outstanding against any Mortgaged Property securing a
WMMSC Master Serviced Loan;
(v) As of the Closing Date, there is no offset, defense or
counterclaim to any Mortgage Note relating to a WMMSC Master Serviced
Loan, including the obligation of the Mortgagor to pay the unpaid
principal or interest on such Mortgage Note;
(vi) As of the Closing Date, each Mortgaged Property securing a
WMMSC Master Serviced Loan is free of damage and in good repair, ordinary
wear and tear excepted;
(vii) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth in lending, real estate
settlement procedures, consumer credit protections, all applicable
predatory and abusive lending laws, equal credit opportunity or disclosure
laws applicable to the origination and servicing of WMMSC Master Serviced
Loan have been complied with;
(viii) Each WMMSC Master Serviced Loan was originated by a savings
and loan association, savings bank, commercial bank, credit union,
insurance company, or similar institution which is supervised and examined
by a federal or state authority or by a mortgagee approved by the FHA and
will be serviced by an institution which meets the servicer eligibility
requirements established by WMMSC;
(ix) As of the Closing Date, each WMMSC Master Serviced Loan that is
not a Cooperative Loan is covered by an ALTA form or CLTA form of
mortgagee title insurance policy or other form of policy of insurance
which has been issued by, and is the valid and binding obligation of, a
title insurer which, as of the origination date of such WMMSC Master
Serviced Loan, was qualified to do business in the state in which the
related Mortgaged Property securing the WMMSC Master Serviced Loan is
located. Such policy insures the originator of the WMMSC Master Serviced
Loan, its successors and assigns as to the first priority lien of the
Mortgage in the original principal amount of the WMMSC Master Serviced
Loan subject to the exceptions set forth in such policy. Such policy is in
full force and effect and inures to the benefit of the Trust upon the
consummation of the transactions contemplated by this Agreement and no
claims have been made under such policy, and no prior holder of the
related Mortgage has done, by act or omission, anything which would impair
the coverage of such policy;
(x) Each WMMSC Master Serviced Loan with a Loan-to-Value Ratio as of
the Cut-off Date in excess of 80% was covered by a Primary Mortgage
Insurance Policy or an FHA insurance policy or a VA guaranty, and such
policy or guaranty is valid and remains in full force and effect;
(xi) As of the Closing Date, all policies of insurance required by
this Agreement or by a Servicing Contract have been validly issued and
remain in full force and effect, including such policies covering the
Depositor, the WMMSC Master Servicer or any WMMSC Servicer;
(xii) As of the Closing Date, each insurer issuing a Primary
Mortgage Insurance Policy holds a rating acceptable to the Rating
Agencies;
(xiii) Each Mortgage (exclusive of any riders thereto) relating to a
WMMSC Master Serviced Loan was documented by appropriate FNMA/FHLMC
mortgage instruments in effect at the time of origination;
(xiv) As of the Closing Date, the Mortgaged Property securing each
Mortgage relating to a WMMSC Master Serviced Loan that is not a
Cooperative Loan is improved with a one- to four-family dwelling unit,
including units in a duplex, triplex, fourplex, condominium project,
townhouse, a planned unit development or a de minimis planned unit
development;
(xv) As of the Closing Date, each Mortgage and Mortgage Note
relating to a WMMSC Master Serviced Loan is the legal, valid and binding
obligation of the maker thereof and is enforceable in accordance with its
terms, except only as such enforcement may be limited by laws affecting
the enforcement of creditors' rights generally and principles of equity;
(xvi) As of the date of origination, as to Mortgaged Properties
securing WMMSC Master Serviced Loan which are units in condominiums or
planned unit developments, all of such units met the applicable
Underwriting Guidelines, were located in a condominium or planned unit
development project which received FNMA or FHLMC approval, or are
approvable by FNMA or FHLMC or otherwise was approved by the Depositor;
(xvii) None of the WMMSC Master Serviced Loans are "buydown" loans;
(xviii) None of the WMMSC Master Serviced Loans are covered by a FHA
insurance policy or VA insurance policy;
(xix) Based solely on representations of the Mortgagors obtained at
the origination of the related WMMSC Master Serviced Loans, approximately
99.28% (by aggregate Stated Principal Balance as of the Cut-off Date) of
the WMMSC Master Serviced Loans in Loan Group 1 will be secured by owner
occupied Mortgaged Properties which are the primary residences of the
related Mortgagors, approximately 0.72% (by aggregate Stated Principal
Balance as of the Cut-off Date) of the WMMSC Master Serviced Loans in Loan
Group 1 will be secured by owner occupied Mortgaged Properties which were
second or vacation homes of the Mortgagors and none of the WMMSC Master
Serviced Loans in Loan Group 1 will be secured by Mortgaged Properties
which were investor properties of the related Mortgagors; all of the WMMSC
Master Serviced Loans in Loan Group 4 will be secured by owner occupied
Mortgaged Properties which are the primary residences of the related
Mortgagors, none of the WMMSC Master Serviced Loans in Loan Group 4 will
be secured by owner occupied Mortgaged Properties which were second or
vacation homes of the Mortgagors and none of the WMMSC Master Serviced
Loans in Loan Group 4 will be secured by Mortgaged Properties which were
investor properties of the related Mortgagors;
(xx) Prior to origination or refinancing, an appraisal of each
Mortgaged Property securing a WMMSC Master Serviced Loan was made by an
appraiser on a form satisfactory to FNMA or FHLMC;
(xxi) The WMMSC Master Serviced Loans have been underwritten
substantially in accordance with the applicable Underwriting Guidelines;
(xxii) If the WMMSC Master Serviced Loan is secured by a long-term
residential lease, (1) the lessor under the lease holds a fee simple
interest in the land; (2) the terms of such lease expressly permit the
mortgaging of the leasehold estate, the assignment of the lease without
the lessor's consent and the acquisition by the holder of the Mortgage of
the rights of the lessee upon foreclosure or assignment in lieu of
foreclosure or provide the holder of the Mortgage with substantially
similar protections; (3) the terms of such lease do not (a) allow the
termination thereof upon the lessee's default without the holder of the
Mortgage being entitled to receive written notice of, and opportunity to
cure, such default, (b) allow the termination of the lease in the event of
damage or destruction as long as the Mortgage is in existence, (c)
prohibit the holder of the Mortgage from being insured (or receiving
proceeds of insurance) under the hazard insurance policy or policies
relating to the Mortgaged Property or (d) permit any increase in the rent
other than pre-established increases set forth in the lease; (4) the
original term of such lease in not less than 15 years; (5) the term of
such lease does not terminate earlier than five years after the maturity
date of the Mortgage Note; and (6) the Mortgaged Property is located in a
jurisdiction in which the use of leasehold estates in transferring
ownership in residential properties is a widely accepted practice;
(xxiii) All of the WMMSC Master Serviced Loans have due-on-sale
clauses; however, the due on sale provisions may not be exercised at the
time of a transfer if prohibited by law;
(xxiv) With respect to each WMMSC Master Serviced Loan that is a
Cooperative Loan, the Cooperative Stock that is pledged as security for
the Cooperative Loan is held by a person as a tenant-stockholder (as
defined in Section 216 of the Code) in a cooperative housing corporation
(as defined in Section 216 of the Code);
(xxv) Each WMMSC Master Serviced Loan that is a Cooperative Loan is
secured by a valid, subsisting and enforceable (except as such enforcement
may be limited by laws affecting the enforcement of creditors' rights
generally and principles of equity) perfected first lien and security
interest in the related Cooperative Stock securing the related Mortgage
Note, subject only to (a) liens of the Cooperative for unpaid assessments
representing the Mortgagor's pro rata share of the Cooperative's payments
for its blanket mortgage, current and future real property taxes,
insurance premiums, maintenance fees and other assessments to which like
collateral is commonly subject, and (b) other matters to which like
collateral is commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Security
Agreement;
(xxvi) With respect to any WMMSC Master Serviced Loan as to which an
affidavit has been delivered to the Trustee or related Custodian
certifying that the original Mortgage Note is lost or destroyed, if such
WMMSC Master Serviced Loan is subsequently in default, the enforcement of
such WMMSC Master Serviced Loan or of the related Mortgage by or on behalf
of the Trust will not be materially adversely affected by the absence of
the original Mortgage Note (or portion thereof, as applicable);
(xxvii) Based upon an appraisal of the Mortgaged Property securing
each WMMSC Master Serviced Loan, as of the Cut-off Date approximately
99.54% (by aggregate Stated Principal Balance as of the Cut-off Date) of
the WMMSC Master Serviced Loans in Loan Group 1 had a Loan-to-Value Ratio
less than or equal to 80%, approximately 0.46% (by aggregate Stated
Principal Balance as of the Cut-off Date) of the WMMSC Master Serviced
Loans in Group 1 had a Loan-to-Value Ratio greater than 80% but less than
or equal to 95%, none of the WMMSC Master Serviced Loans in Loan Group 1
had a Loan-to-Value Ratio greater than 95% and all of the WMMSC Master
Serviced Loans in Loan Group 4 had a Loan-to-Value Ratio less than or
equal to 80%;
(xxviii) Approximately 76.71% (by aggregate Stated Principal Balance
as of the Cut-off Date) of the WMMSC Master Serviced Loans in Loan Group 1
and approximately 86.74% (by aggregate Stated Principal Balance as of the
Cut-off Date) of the WMMSC Master Serviced Loans in Loan Group 4 were
originated for the purpose of refinancing existing mortgage debt,
including cash-out refinancings; and approximately 23.29% (by aggregate
Stated Principal Balance as of the Cut-off Date) of the WMMSC Master
Serviced Loans in Loan Group 1 and approximately 13.26% (by aggregate
Stated Principal Balance as of the Cut-off Date) of the WMMSC Master
Serviced Loans in Loan Group 4 were originated for the purpose of
purchasing the Mortgaged Property;
(xxix) Not less than approximately 74.74% and approximately 71.88%
(each by aggregate Stated Principal Balance as of the Cut-off Date) of the
WMMSC Master Serviced Loans in Loan Group 1 and WMMSC Master Serviced
Loans in Loan Group 4, respectively, were originated under full
documentation programs;
(xxx) No WMMSC Master Serviced Loan is a "high cost" loan as defined
under any federal, state or local law applicable to such Mortgage at the
time of its origination;
(xxxi) Each WMMSC Master Serviced Loan constitutes a qualified
mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations
Section 1.860G-2(a)(1);
(xxxii) The Mortgage Note and the Mortgage relating to each WMMSC
Master Serviced Loan are genuine, and each is the legal, valid and binding
obligation of the maker thereof and each party assuming liability
therefor, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, or other similar laws affecting the enforcement of creditors'
rights generally and except that the equitable remedy of specific
performance and other equitable remedies are subject to the discretion of
the courts;
(xxxiii) With respect to each WMMSC Master Serviced Loan, there are
no mechanics' or similar liens or claims which have been filed for work,
labor, or material (and no rights are outstanding that under law could
give rise to such lien) which are, or may be, liens prior or equal to the
lien of the related Mortgage, which are not insured against by the related
mortgagee's policy of title insurance; and
(xxxiv) No WMMSC Master Serviced Loan is a High Cost Loan or Covered
Loan (as such terms are defined in the Standard & Poor's LEVELS(R)
Glossary in effect on the Closing Date, which is now Version 5.6 Revised,
Appendix E, applicable portions of which are attached hereto as Exhibit T
hereto), except that the definition of a High Cost Loan for the purposes
hereof shall not include loans originated in Los Angeles or Oakland,
California, and no WMMSC Master Serviced Loan originated on or after
October 1, 2002 through March 6, 2003 is governed by the Georgia Fair
Lending Act.
Notwithstanding the foregoing, no representations or warranties are
made by the Representing Party as to the environmental condition of any
Mortgaged Property securing a WMMSC Master Serviced Loan; the absence, presence
or effect of hazardous wastes or hazardous substances on any Mortgaged Property
securing a WMMSC Master Serviced Loan; any casualty resulting from the presence
or effect of hazardous wastes or hazardous substances on, near or emanating from
any Mortgaged Property securing a WMMSC Master Serviced Loan; the impact on
Certificateholders of any environmental condition or presence of any hazardous
substance on or near any Mortgaged Property securing a WMMSC Master Serviced
Loan; or the compliance of any Mortgaged Property securing a WMMSC Master
Serviced Loan with any environmental laws, nor is any agent, Person or entity
otherwise affiliated with the Representing Party authorized or able to make any
such representation, warranty or assumption of liability relative to any
Mortgaged Property securing a WMMSC Master Serviced Loan. In addition, no
representations or warranties are made by the Representing Party with respect to
the absence or effect of fraud in the origination of any WMMSC Master Serviced
Loan.
(b) 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 related Custodian and shall inure to the benefit of
the Trustee, notwithstanding any restrictive or qualified endorsement or
assignment.
Upon discovery by any of the Depositor, the Representing Party,
either Master Servicer, the Trustee or the Custodian that any of the
representations and warranties set forth in this Section 2.04 is not accurate
(referred to herein as a "breach") and that such breach materially and adversely
affects the interests of the Certificateholders in the related Mortgage Loan,
the party discovering such breach shall give prompt written notice to the other
parties (the Custodian being so obligated under the Custodial Agreement);
provided that any such breach that causes the Mortgage Loan not to be a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code shall
be deemed to materially and adversely affect the interests of the
Certificateholders. Within 90 days of its discovery or its receipt of notice of
any such breach, the Representing Party, if such breach relates to a
representation and warranty set forth in Section 2.04(a), or the Depositor, if
such breach relates to a representation and warranty set forth in Section
2.04(b), 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. In addition to the foregoing, if a breach of the
representation set forth in clause (vii) or clause (xxxiv) of Section 2.04(a)
occurs as a result of a violation of an applicable predatory or abusive lending
law, the Representing Party shall reimburse the Trust for all costs or damages
incurred by the Trust as a result of the violation of such law (such amount, the
"WMMSC Master Serviced Loan Reimbursement Amount"). The Purchase Price of any
repurchase described in this paragraph, the Substitution Adjustment Amount, if
any, and any WMMSC Master Serviced Loan Reimbursement Amount shall be remitted
to the applicable Master Servicer for deposit to the related Master Servicer
Custodial Account. It is understood and agreed that, except with respect to the
second preceding sentence, the obligation of the Representing Party or the
Depositor, as applicable, to repurchase or substitute for any Mortgage Loan or
Mortgaged Property as to which such a breach has occurred and is continuing
shall constitute the sole remedy respecting such breach available to
Certificateholders, or to the Trustee on behalf of Certificateholders, and such
obligation shall survive until termination of the Trust hereunder.
Section 2.05 Designation of Interests in the REMICs. The Depositor
hereby designates the Classes of Senior Certificates (other than the Class 1-A-R
and Class 1-A-LR Certificates) and the Classes of Class B Certificates as
"regular interests" and the Class 1-A-R Certificate as the single class of
"residual interest" in the Upper Tier REMIC for the purposes of Code Sections
860G(a)(1) and 860G(a)(2), respectively. The Depositor hereby further designates
the Class 1-L Interest, Class 1-LS Interest, Class 2-L Interest, Class 2-LS
Interest, Class 3-L Interest, Class 3-LS Interest, Class 4-L Interest, Class
4-LS Interest, Class 5-L Interest and Class 5-LS Interest as classes of "regular
interests" and the Class 1-LR-E Interest as the single class of "residual
interest" in the Pooling REMIC for the purposes of Code Sections 860G(a)(1) and
860G(a)(2), respectively. The Depositor hereby further designates (i) the WF
Group 4 Regular Interest as the class of "regular interests" and the Class
1-LR-A Interest as the single class of "residual interest" in the WF Group 4
REMIC for the purposes of Code Sections 860G(a)(1) and 860G(a)(2), respectively;
(ii) the WF RCR Regular Interest as the class of "regular interests" and the
Class 1-LR-B Interest as the single class of "residual interest" in the WF RCR
REMIC for the purposes of Code Sections 860G(a)(1) and 860G(a)(2), respectively;
(iii) the WMMSC Group 1 Regular Interest as the class of "regular interests" and
the Class 1-LR-C Interest as the single class of "residual interest" in the
WMMSC Group 1 REMIC for the purposes of Code Sections 860G(a)(1) and 860G(a)(2),
respectively; and (iv) the WMMSC Group 4 Regular Interest as the class of
"regular interests" and the Class 1-LR-D Interest as the single class of
"residual interest" in the WMMSC Group 4 REMIC for the purposes of Code Sections
860G(a)(1) and 860G(a)(2), respectively.
Section 2.06 Designation of Start-up Day. The Closing Date is hereby
designated as the "start-up day" of each 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 each REMIC is January 25,
2035.
Section 2.08 Execution and Delivery of Certificates. The Securities
Administrator (i) acknowledges the issuance of and hereby declares that it holds
the Uncertificated Group REMIC Regular Interests on behalf of the Pooling REMIC
and the Certificateholders and that it holds the Uncertificated Pooling REMIC
Regular Interests on behalf of the Upper-Tier REMIC and the Certificateholders
and (ii) has executed and delivered to or upon the order of the Depositor, in
exchange for the Mortgage Loans, the Uncertificated Group REMIC Regular
Interests and the Uncertificated Pooling REMIC Interests, together with all
other assets included in the definition of "Trust Estate," receipt of which is
hereby acknowledged, Certificates in authorized denominations which, together
with the Uncertificated Group REMIC Regular Interests and the Uncertificated
Pooling REMIC Interests, evidence ownership of the entire Trust Estate.
Section 2.09 Repurchase of Converted Mortgage Loans. The Depositor
shall repurchase from the Trust any Converted Mortgage Loan prior to the first
Due Date for such Mortgage Loan following the Conversion Date. Any such
repurchase shall be at the Purchase Price. The Purchase Price for any
repurchased Converted Mortgage Loan shall be delivered to the related Master
Servicer for deposit to the applicable Master Servicer Custodial Account and,
upon receipt by the Trustee or the Custodian on behalf of the Trustee, as the
case may be, of written notification of any such deposit signed by an officer of
the Depositor and a Request for Release, the Trustee or Custodian, as
applicable, shall release to the Depositor the related Mortgage File and shall
execute and deliver such instruments of transfer or assignment prepared by the
Depositor, in each case without recourse, as shall be necessary to vest in the
Depositor legal and beneficial ownership of such Converted Mortgage Loan.
ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicing of the Mortgage Loans.
(a) For and on behalf of the Certificateholders, the WF Master
Servicer shall supervise, monitor and oversee the obligations of the WF
Servicers to service and administer their respective WF Master Serviced Loans in
accordance with the terms of the applicable Servicing Agreement and shall have
full power and authority to do any and all things which it may deem necessary or
desirable in connection with such master servicing and administration. In
performing its obligations hereunder, the WF Master Servicer shall act in a
manner consistent with this Agreement, subject to the prior sentence, and with
Customary Servicing Procedures. Furthermore, the WF Master Servicer shall
oversee and consult with each WF Servicer as necessary from time-to-time to
carry out the WF Master Servicer's obligations hereunder, shall receive, review
and evaluate all reports, information and other data provided to the WF Master
Servicer by each WF Servicer and shall cause each WF Servicer to perform and
observe the covenants, obligations and conditions to be performed or observed by
such WF Servicer under the applicable Servicing Agreement. The WF Master
Servicer shall independently and separately monitor each WF Servicer's servicing
activities with respect to each related WF Master Serviced 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 WF
Servicers' and the WF Master Servicer's records, and based on such reconciled
and corrected information, prepare the WF Master Servicer's Certificate and any
other information and statements required hereunder. The WF Master Servicer
shall reconcile the results of its Mortgage Loan monitoring with the actual
remittances of the WF Servicers to the WF Master Servicer Custodial Account
pursuant to the applicable Servicing Agreements.
Continuously from the date hereof until the principal and interest
on all WF Master Serviced Loans are paid in full, the WF Master Servicer shall
enforce the obligations of the WF Servicers to collect all payments due under
the terms and provisions of the WF Master Serviced Loans when the same shall
become due and payable to the extent such procedures shall be consistent with
the applicable Servicing Agreement.
The relationship of the WF Master Servicer (and of any successor to
the WF 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.
(b) The WMMSC Master Servicer shall act as master servicer to
service and administer the WMMSC Master Serviced Loans on behalf of the Trust in
accordance with the terms hereof, consistent with prudent mortgage loan
servicing practices and (unless inconsistent with prudent mortgage loan
servicing practices) in the same manner in which, and with the same care, skill,
prudence and diligence with which, it services and administers similar mortgage
loans for other portfolios, and shall have full power and authority to do or
cause to be done any and all things in connection with such servicing and
administration which a prudent servicer of mortgage loans would do under similar
circumstances, including, without limitation, the power and authority to bring
actions and defend the Trust Estate on behalf of the Trust in order to enforce
the terms of the related Mortgage Notes. The WMMSC Master Servicer may perform
its master servicing responsibilities through agents or independent contractors,
including the WMMSC Servicers, but shall not thereby be released from any of its
master servicing or servicing responsibilities hereunder and the WMMSC Master
Servicer shall diligently pursue all of its rights against such agents or
independent contractors.
The WMMSC Master Servicer shall make reasonable efforts to collect
or cause to be collected all payments called for under the terms and provisions
of the WMMSC Master Serviced Loans and shall, to the extent such procedures
shall be consistent with this Agreement and the terms and provisions of any
Primary Mortgage Insurance Policy, any FHA insurance policy or VA guaranty, any
hazard insurance policy, and federal flood insurance, cause to be followed such
collection procedures as are followed with respect to mortgage loans comparable
to the WMMSC Master Serviced Loans and held in portfolios of responsible
mortgage lenders in the local areas where each Mortgaged Property is located.
The WMMSC Master Servicer shall enforce "due-on-sale" clauses with respect to
the related Mortgage Loans, to the extent permitted by law, subject to the
provisions set forth in Section 3.14.
Consistent with the foregoing, the WMMSC Master Servicer may, in
accordance with prudent mortgage loan servicing practices, (i) waive or cause to
be waived any assumption fee or late payment charge in connection with the
prepayment of any WMMSC Master Serviced Loan and (ii) only upon determining that
the coverage of any applicable insurance policy or guaranty related to a WMMSC
Master Serviced Loan will not be materially adversely affected, arrange a
schedule, running for no more than 180 days after the first delinquent Due Date,
for payment of any delinquent installment on any Mortgage Note or for the
liquidation of delinquent items. The WMMSC Master Servicer shall have the right,
but not the obligation, to purchase any WMMSC Master Serviced Loan delinquent 90
consecutive days or more for an amount equal to its Purchase Price; provided,
however, that the aggregate Purchase Price of WMMSC Master Serviced Loans so
purchased pursuant to this sentence shall not exceed one-half of one percent
(0.50%) of the aggregate Stated Principal Balance, as of the Cut-off Date, of
all WMMSC Master Serviced Loans. For purposes of this paragraph, a WMMSC Master
Serviced Loan is considered delinquent for 90 consecutive days if a Monthly
Payment is not received by the first day of the third month following the month
during which such payment was due.
Consistent with the terms of this Section 3.01, the WMMSC Master
Servicer may waive, modify or vary any term of any WMMSC Master Serviced Loan or
consent to the postponement of strict compliance with any such term or in any
manner grant indulgence to any Mortgagor if it has determined, exercising its
good faith business judgment in the same manner as it would if it were the owner
of the related WMMSC Master Serviced Loan, that the security for, and the timely
and full collectability of, such Mortgage Loan would not be adversely affected
by such waiver, modification, postponement or indulgence; provided, however,
that the WMMSC Master Servicer shall not permit any modification with respect to
any WMMSC Master Serviced Loan that would (i) change the applicable Mortgage
Interest Rate, defer (except as permitted in the preceding paragraph) or forgive
the payment of any principal or interest, reduce the outstanding principal
balance (except for actual payments of principal) or extend the final maturity
date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms
of any applicable Primary Mortgage Insurance Policy, FHA insurance policy, VA
guaranty, hazard insurance policy or federal flood insurance policy.
Notwithstanding the foregoing, the WMMSC Master Servicer shall not permit any
modification with respect to any WMMSC Master Serviced Loan that would both
constitute a sale or exchange of such Mortgage Loan within the meaning of
Section 1001 of the Code (including any proposed, temporary or final regulations
promulgated thereunder) (other than in connection with a proposed conveyance or
assumption of such Mortgage Loan that is treated as a Principal Prepayment or in
a default situation) and cause any REMIC to fail to qualify as such under the
Code. The WMMSC Master Servicer shall be entitled to approve a request from a
Mortgagor for a partial release of the related Mortgaged Property, the granting
of an easement thereon in favor of another Person, any alteration or demolition
of the related Mortgaged Property or other similar matters if it has determined,
exercising its good faith business judgment in the same manner as it would if it
were the owner of the related WMMSC Master Serviced Loan, that the security for,
and the timely and full collectability of, such WMMSC Master Serviced Loan would
not be adversely affected thereby and that no REMIC created hereby would fail to
continue to qualify as a REMIC under the Code as a result thereof and that no
tax on "prohibited transactions" or "contributions" after the startup day would
be imposed on any REMIC as a result thereof.
The WMMSC Master Servicer is hereby authorized and empowered by the
Trust to execute and deliver or cause to be executed and delivered on behalf of
the Holders of the Regular Certificates and the Class 1-A-LR Certificate, and
the Trust or any of them, any and all instruments of satisfaction or
cancellation, or of partial or full release, discharge or modification,
assignments of Mortgages and endorsements of Mortgage Notes in connection with
refinancings (in jurisdictions where such assignments are the customary and
usual standard of practice of mortgage lenders) and all other comparable
instruments, with respect to the WMMSC Master Serviced Loans and with respect to
the Mortgaged Properties. The WMMSC Master Servicer is hereby further authorized
and empowered by the Trust to execute and deliver or cause to be executed and
delivered on behalf of the Holders of the Regular Certificates and the Residual
Certificates and the Trust, or any of them, such instruments of assignment or
other comparable instruments as the WMMSC Master Servicer shall, in its sole
judgment, deem appropriate in order to register any WMMSC Master Serviced Loan
on the MERS system or to cause the removal of any WMMSC Master Serviced Loan
from registration thereon. Any expenses incurred in connection with the actions
described in the preceding sentence shall be borne by the WMMSC Master Servicer
with no right of reimbursement; provided, however, that any such expenses
incurred as a result of any termination by MERS of the MERS system shall be
reimbursable to the WMMSC Master Servicer. The Trustee on behalf of the Trust
shall execute and furnish to the WMMSC Master Servicer, at the WMMSC Master
Servicer's direction, any powers of attorney and other documents prepared by the
WMMSC Master Servicer and determined by the WMMSC Master Servicer to be
necessary or appropriate to enable the WMMSC Master Servicer to carry out its
supervisory, servicing and administrative duties under this Agreement.
In connection with the servicing and administering of each WMMSC
Master Serviced Loan, the WMMSC Master Servicer and any affiliate of the WMMSC
Master Servicer (i) may perform services such as appraisals, default management
and (in the case of affiliates only) brokerage services that are not customarily
provided by servicers of mortgage loans, and shall be entitled to reasonable
compensation therefor and (ii) may, at its own discretion and on behalf of the
Trust, obtain credit information in the form of a "credit score" from a credit
repository.
Section 3.02 Monitoring of WF Servicers.
(a) The WF Master Servicer shall be responsible for reporting to the
Trustee, the Securities Administrator and the Depositor the compliance by each
WF Servicer with its duties under the related Servicing Agreement. In the review
of each WF Servicer's activities, the WF Master Servicer may rely upon an
officer's certificate of the WF Servicer with regard to such WF Servicer's
compliance with the terms of its Servicing Agreement. In the event that the WF
Master Servicer, in its judgment, determines that a WF Servicer should be
terminated in accordance with its Servicing Agreement, or that a notice should
be sent pursuant to such Servicing Agreement with respect to the occurrence of
an event that, unless cured, would constitute grounds for such termination, the
WF Master Servicer shall notify the Depositor, the Securities Administrator and
the Trustee thereof and the WF Master Servicer shall issue such notice or take
such other action as it deems appropriate.
(b) The WF Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of each WF Servicer under the
related Servicing Agreement, and shall, in the event that a WF Servicer fails to
perform its obligations in accordance with the related Servicing Agreement,
subject to the preceding paragraph, terminate the rights and obligations of such
WF Servicer thereunder and act as successor WF Servicer of the related WF Master
Serviced Loans under the applicable Servicing Agreement (except, in the case of
the termination of Xxxxx Fargo Bank as a Servicer under the Xxxxx Fargo
Servicing Agreement, the Trustee shall either act as successor Servicer or shall
appoint a successor Servicer of the related WF Master Serviced Loans under the
Xxxxx Fargo Servicing Agreement) or cause the Trustee to enter in to a new
Servicing Agreement with a successor Servicer selected by the WF Master Servicer
(except, in the case of the Xxxxx Fargo Servicing Agreement, the Trustee shall
select the successor 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 WF Servicer. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Servicing Agreements
and the pursuit of other appropriate remedies, shall be in such form and carried
out to such an extent and at such time as the WF Master Servicer, in its good
faith business judgment, would require were it the owner of the related WF
Master Serviced Loans. The WF 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 WF Master Serviced Loan or (ii) from a specific recovery of costs,
expenses or attorneys fees against the party whom such enforcement is directed,
provided that the WF Master Servicer and the Trustee, as applicable, shall not
be required to prosecute or defend any legal action except to the extent that
the WF 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 WF Master
Servicer or the Trustee, as applicable, related to any termination of a WF
Servicer, appointment of a successor WF Servicer or the transfer and assumption
of servicing by the WF 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 WF Servicer as a result of an
Event of Default by such WF 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 WF Servicer to correct any errors or
insufficiencies in the servicing data or otherwise to enable the successor
Servicer to service the WF Master Serviced Loans in accordance with the related
Servicing Agreement) are not fully and timely reimbursed by the terminated WF
Servicer, the WF Master Servicer or the Trustee, as applicable, shall be
entitled to reimbursement of such costs and expenses from the WF Master Servicer
Custodial Account.
(d) The WF Master Servicer shall require each WF Servicer to comply
with the remittance requirements and other obligations set forth in the related
Servicing Agreement.
(e) If the WF Master Servicer acts as WF Servicer, it will not
assume liability for the representations and warranties of the WF Servicer, if
any, that it replaces.
Section 3.03 Fidelity Bond; Errors and Omissions Insurance. Each
Master Servicer and WMMSC 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 or with respect to a WMMSC Servicer,
their obligations under the applicable Servicing Contract. These policies must
insure the Master Servicers and WMMSC Servicers against losses resulting from
dishonest or fraudulent acts committed by the related Master Servicer's or WMMSC
Servicer's personnel, any employees of outside firms that provide data
processing services for the related Master Servicer or WMMSC 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 Servicers or WMMSC Servicer from its duties and
obligations as set forth in this Agreement or in a Servicing Contract, as
applicable. The minimum coverage under any such bond and insurance policy shall
be at least equal to the corresponding amounts required by FNMA in the FNMA
Servicing Guide or by FHLMC in the FHLMC Sellers' & Servicers' Guide, as amended
or restated from time to time, or in an amount as may be permitted to the Master
Servicers or WMMSC Servicer by express waiver of FNMA or FHLMC. In the event
that any such policy or bond ceases to be in effect, the Master Servicers and
WMMSC Servicers 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 WMMSC Master Servicer and the WF Master Servicer shall provide,
and the WF Master Servicer shall cause each WF Servicer to provide in accordance
with the related Servicing Agreement, to the OTS, the OCC, the FDIC and to
comparable regulatory authorities supervising Holders of Certificates and the
examiners and supervisory agents of the OTS, the OCC, the FDIC and such other
authorities, access to the documentation required by applicable regulations of
the OTS, the OCC, the FDIC and such other authorites with respect to the
Mortgage Loans and shall in any event provide such access to the documentation
regarding such Mortgage Loans to the Trustee, the Securities Administrator and
their representatives. 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 related Master Servicer and the related Servicer.
In fulfilling such request for access, the WF Master Servicer shall not be
responsible to determine the sufficiency of any information provided by such WF
Servicer. Nothing in this Section 3.04 shall limit the obligation of the related
Master Servicer and the related Servicer to observe any applicable law and the
failure of the related Master Servicer or the related Servicer to provide access
as provided in this Section 3.04 as a result of such obligation shall not
constitute a breach of this Section 3.04.
Section 3.05 Maintenance of Primary Mortgage Insurance Policy;
Claims.
(a) The WF Master Servicer shall not take, or permit any WF Servicer
(to the extent such action is prohibited under the applicable Servicing
Agreement) to take, any action that would result in noncoverage under any
applicable Primary Mortgage Insurance Policy of any loss which, but for the
actions of such the WF Master Servicer or WF Servicer, would have been covered
thereunder. The WF Master Servicer shall use its best reasonable efforts to
cause each WF Servicer (to the extent required under the related Servicing
Agreement) to keep in force and effect (to the extent that the WF Master
Serviced Loan requires the Mortgagor to maintain such insurance), primary
mortgage insurance applicable to each WF Master Serviced Loan in accordance with
the provisions of this Agreement and the related Servicing Agreement, as
applicable. The WF Master Servicer shall not, and shall not permit any WF
Servicer (to the extent required under the related Servicing Agreement) to,
cancel or refuse to renew any such Primary Mortgage Insurance Policy that is in
effect at the date of the initial issuance of the Mortgage Note and is required
to be kept in force hereunder except in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable.
(b) The WF Master Servicer agrees to present, or to cause each WF
Servicer (to the extent required under the related Servicing Agreement) to
present, on behalf of the Trustee and the Certificateholders, claims to the
insurer under any Primary Mortgage Insurance Policies and, in this regard, to
take such reasonable action as shall be necessary to permit recovery under any
Primary Mortgage Insurance Policies respecting defaulted WF Master Serviced
Loans. Pursuant to Sections 3.08 and 3.09, any amounts collected by the WF
Master Servicer or any WF Servicer under any Primary Mortgage Insurance Policies
shall be deposited in the WF Master Servicer Custodial Account, subject to
withdrawal pursuant to Section 3.11.
(c) The WMMSC Master Servicer shall use commercially reasonable
efforts to keep, and to cause the WMMSC Servicers to keep, in full force and
effect each Primary Mortgage Insurance Policy with respect to a WMMSC Master
Serviced Loan with a Loan-to-Value Ratio in excess of 80%, until no longer
required or until no longer permitted under applicable law. Notwithstanding the
foregoing, the WMMSC Master Servicer shall have no obligation to maintain any
Primary Mortgage Insurance Policy for a WMMSC Master Serviced Loan for which the
outstanding Principal Balance thereof at any time subsequent to origination was
80% or less of the Appraised Value of the related Mortgaged Property, unless
required by applicable law.
Unless required by applicable law, the WMMSC Master Servicer shall
not cancel or refuse to renew, or allow any WMMSC Servicer under its supervision
to cancel or refuse to renew, any Primary Mortgage Insurance Policy in effect at
the date of the initial issuance of the Certificates that is required to be kept
in force hereunder; provided, however, that neither the WMMSC Master Servicer
nor any WMMSC Servicer shall advance funds for the payment of any premium due
under any Primary Mortgage Insurance Policy if it shall determine that such an
advance would be a Nonrecoverable Advance.
The WMMSC Master Servicer agrees to present, or cause to be
presented, on behalf of and for the benefit of the Trust, claims under the
Primary Mortgage Insurance Policy respecting any WMMSC Master Serviced Loan, and
in this regard to take such reasonable actions as shall be necessary to permit
recovery under such Primary Mortgage Insurance Policy.
Section 3.06 Rights of the Depositor, the Securities Administrator
and the Trustee in Respect of the Master Servicers.
The Depositor may, but is not obligated to, enforce the obligations
of the Master Servicers hereunder and may, but is not obligated to, perform, or
cause a designee to perform, any defaulted obligation of either Master Servicer
hereunder and in connection with any such defaulted obligation to exercise the
related rights of a Master Servicer hereunder; provided that a 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 either Master Servicer and the
Securities Administrator, the Trustee or the Depositor shall not be obligated to
supervise the performance of a Master Servicer hereunder or otherwise.
Section 3.07 Trustee to Act as Master Servicer.
In the event a Master Servicer or any successor master servicer
shall for any reason no longer be a 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 such Master Servicer
hereunder and all of the rights and obligations of such Master Servicer under
the Servicing Contracts or Servicing Agreements, as applicable, with respect to
the related Mortgage Loans, unless the Trustee elects to terminate the Servicing
Contracts or Servicing Agreements, as applicable, with respect to such Mortgage
Loans in accordance with the terms thereof. Unless the Trustee so elects to
terminate the Servicing Contracts or Servicing Agreements, as applicable, the
Trustee, its designee or the successor master servicer for the Trustee shall be
deemed to have assumed all of the applicable Master Servicer's interest therein
with respect to the related Mortgage Loans and to have replaced the applicable
Master Servicer as a party to the Servicing Contracts or Servicing Agreements,
as applicable, to the same extent as if the rights and duties under the
Servicing Contracts or Servicing Agreements relating to such Mortgage Loans had
been assigned to the assuming party, except that the related Master Servicer
shall not thereby be relieved of any liability or obligations under the
Servicing Contracts or Servicing Agreements, as applicable, with respect to the
related 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.
In addition, with respect to the WMMSC Master Serviced Loans for
which the WMMSC Master Servicer has not entered into a Servicing Contract, if
the WMMSC Master Servicer shall for any reason no longer be the WMMSC Master
Servicer, the Trustee as trustee hereunder shall assume, within 90 days of such
time, or shall appoint a successor Servicer to assume, all of the rights and
obligations of the WMMSC Master Servicer as WMMSC Servicer with respect to such
WMMSC Mortgage Loans.
A Master Servicer at its expense shall, upon request of the Trustee,
deliver to the assuming party all documents and records relating to the
Servicing Contracts and the Mortgage Loans then being master serviced and
serviced by such Master Servicer and an accounting of amounts collected and held
by such Master Servicer, and shall transfer control of the related Master
Servicer Custodial Account, Escrow Accounts 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 under the related
Servicing Contracts 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.
Section 3.08 Servicer Custodial Accounts and Escrow Accounts.
(a) The WF Master Servicer shall enforce the obligation of each WF
Servicer to establish and maintain a Servicer Custodial Account in accordance
with the applicable Servicing Agreement, with records to be kept with respect
thereto on a loan by loan basis, into which accounts shall be deposited within
48 hours (or as of such other time specified in the related Servicing Agreement)
of receipt all collections of principal and interest on any WF Master Serviced
Loan and all collections with respect to any REO Property received by a WF
Servicer, including Principal Prepayments, Insurance Proceeds, Liquidation
Proceeds, Recoveries and Advances made from the WF Servicer's own funds (less
servicing compensation as permitted by the applicable Servicing Agreement in the
case of any WF Servicer) and all other amounts to be deposited in the WF
Servicer Custodial Account. The WF Master Servicer is hereby authorized to make
withdrawals from and deposits to the related Servicer Custodial Account for
purposes required or permitted by this Agreement.
To the extent required by the related Servicing Agreement and by the
related Mortgage Note and not violative of current law, the WF Master Servicer
shall require each WF Servicer to establish and maintain one or more escrow
accounts (for each WF Servicer, collectively, the "WF Escrow Account") and
deposit and retain therein all collections from the Mortgagors (or Advances by
such WF Servicer) for the payment of taxes, assessments, hazard insurance
premiums or comparable items for the account of the Mortgagors. Nothing herein
shall require the WF Master Servicer to compel a WF Servicer to establish a WF
Escrow Account in violation of applicable law.
(b) The WMMSC Master Servicer shall cause to be established and
maintained by each WMMSC Servicer under the WMMSC Master Servicer's supervision
a Servicer Custodial Account and one or more escrow accounts (the "WMMSC Escrow
Accounts") and shall deposit or cause to be deposited therein daily the amounts
related to the WMMSC Master Serviced Loans required by the Servicing Contracts
to be so deposited. The WMMSC Master Servicer or the WMMSC Servicer shall
deposit in the applicable WMMSC Escrow Account on a daily basis all Escrow
Payments received by it. Proceeds received with respect to individual Mortgage
Loans from any title, hazard, or FHA insurance policy, VA guaranty, Primary
Mortgage Insurance Policy or other insurance policy covering such WMMSC Master
Serviced Loans, if required for the restoration or repair of the related
Mortgaged Property, may be deposited either in the WMMSC Escrow Account or a
Servicer Custodial Account. Such proceeds, if not required for the restoration
or repair of the related Mortgaged Property, shall be deposited in the related
Servicer Custodial Account, and shall be applied to the balances of the related
WMMSC Master Serviced Loans as payments of interest and principal. If the WMMSC
Master Servicer discovers that any Servicer Custodial Account or WMMSC Escrow
Account maintained by a WMMSC Servicer is not maintained with an institution
meeting the requirements of the first sentence of the definition of Eligible
Institution, then the WMMSC Master Servicer shall cause such account to be
transferred to an Eligible Institution within two Business Days of such
discovery.
The WMMSC Master Servicer is hereby authorized to make withdrawals
from and to issue drafts against the WMMSC Servicer Custodial Accounts and the
WMMSC Escrow Accounts for the purposes required or permitted by this Agreement.
Each WMMSC Servicer Custodial Account and each WMMSC Escrow Account
shall bear a designation clearly showing the respective interests of the
applicable WMMSC Servicer, as trustee, and of the WMMSC Master Servicer, in
substantially one of the following forms:
With respect to the Servicer Custodial Account of a WMMSC Servicer:
(i) {Servicer's Name}, in trust for Washington Mutual Mortgage Securities Corp.
or (ii) {Servicer's Name}, as agent, trustee and/or bailee of principal and
interest custodial account for Washington Mutual Mortgage Securities Corp. and
its successors and assigns.
With respect to the WMMSC Escrow Account: (i) {Servicer's Name}, in
trust for Washington Mutual Mortgage Securities Corp. or (ii) {Servicer's Name},
as agent, trustee and/or bailee of taxes and insurance custodial account for
Washington Mutual Mortgage Securities Corp. and its successors and assigns.
The WMMSC Master Servicer hereby undertakes to assure remittance to
the Certificate Account of all amounts relating to the WMMSC Master Serviced
Loans that have been collected by any WMMSC Servicer and are due to the
Certificate Account pursuant to this Agreement.
Funds held in the WMMSC Servicer Custodial Account and the WMMSC
Escrow Account may, at the WMMSC Master Servicer's option, be invested in one or
more Permitted Investments which shall in no event mature later than the
Business Day prior to the related Withdrawal Date (except that if such Permitted
Investments are obligations of or managed by the institution that maintains such
account, then such Permitted Investment shall mature not later than such
Withdrawal Date). The WMMSC Master Servicer shall bear any and all losses
incurred on any investments made with such funds and shall be entitled to retain
any gains realized on such investments as additional master servicing
compensation.
Section 3.09 Collection of Mortgage Loan Payments; Master Servicer
Custodial Accounts and Certificate Account.
(a) The Securities Administrator shall establish and maintain the
Certificate Account, which shall be deemed to consist of six sub-accounts. The
Securities Administrator shall, promptly upon receipt, deposit in the
Certificate Account and retain therein any amounts which are required to be
deposited in the Certificate Account by the Securities Administrator.
(b) Each Master Servicer shall establish and maintain a Master
Servicer Custodial Account, which shall be an Eligible Account. Each Master
Servicer shall, promptly upon receipt, deposit in the related Master Servicer
Custodial Account and retain therein any amounts which are required to be
deposited in such Master Servicer Custodial Account by such Master Servicer.
(c) The WF Master Servicer shall deposit or cause to be deposited
into the WF 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 WF Master Servicer by each WF Servicer
from its respective Servicer Custodial Account pursuant to the related Servicing
Agreement or otherwise or received by the WF Master Servicer in respect of the
WF Master Serviced Loans subsequent to the Cut-off Date (other than in respect
of principal and interest due on the WF Master Serviced 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 WF Master Serviced
Loans, including Principal Prepayments;
(ii) all payments on account of interest on the WF Master Serviced
Loans, net of the related Servicing Fee;
(iii) with respect to each WF Master Serviced Loan, (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 WF Escrow Account
pursuant to Section 3.08 and (B) any Insurance Proceeds released from an
Escrow Account;
(iv) any amount required to be deposited by the WF Master Servicer
pursuant to Section 3.09(e) in connection with any losses on Permitted
Investments with respect to the WF Master Servicer Custodial Account;
(v) any amounts relating to REO Property required to be remitted by
the applicable WF Servicer;
(vi) WF Servicer Periodic Advances made by the applicable WF
Servicer pursuant to the related Servicing Agreement (or, if applicable,
by the WF Master Servicer or the Trustee pursuant to Section 3.21) and any
Compensating Interest paid by the applicable WF Servicer pursuant to the
related Servicing Agreement;
(vii) all Purchase Prices, all Substitution Adjustment Amounts and
all WF Master Serviced Loan Reimbursement Amounts to the extent received
by the WF Servicer;
(viii) any Recoveries relating to the WF Master Serviced Loans;
(ix) any other amounts required to be deposited hereunder.
(d) The WMMSC Master Servicer shall deposit or cause to be deposited
into the WMMSC Master Servicer Custodial Account, on the same Business Day of
receipt (except as otherwise specifically provided herein), the following
payments and collections remitted by the WMMSC Servicers or received by it in
respect of the WMMSC Master Serviced Loans subsequent to the Cut-off Date (other
than in respect of principal and interest due on the WMMSC Master Serviced 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 WMMSC Master
Serviced Loans, including Principal Prepayments;
(ii) all payments on account of interest on the WMMSC Master
Serviced Loans, net of the related Servicing Fee;
(iii) with respect to each WMMSC Master Serviced Loan, (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 WMMSC Escrow Account
pursuant to Section 3.08 and (B) any Insurance Proceeds released from an
WMMSC Escrow Account;
(iv) any amount required to be deposited by such Master Servicer
pursuant to Section 3.09(e) in connection with any losses on Permitted
Investments with respect to the WMMSC Master Servicer Custodial Account;
(v) any amounts relating to REO Property required to be remitted by
the applicable WMMSC Servicer;
(vi) WMMSC Advances made by the applicable WMMSC Servicer pursuant
to the related Servicing Agreement (or, if applicable, by the WMMSC Master
Servicer or the Trustee pursuant to Section 3.21) and any Compensating
Interest paid by the applicable WMMSC Servicer;
(vii) all Purchase Prices, all Substitute Adjustment Amounts and all
WMMSC Master Serviced Loan Reimbursement Amounts to the extent received by
the WMMSC Servicer;
(viii) any Recoveries relating to the WMMSC Master Serviced Loans;
and
(ix) any other amounts required to be deposited hereunder.
If a Master Servicer shall deposit any amount not required to be
deposited, it may at any time withdraw such amount from the applicable Master
Servicer Custodial Account, any provision herein to the contrary
notwithstanding. All funds required to be deposited in the Master Servicer
Custodial Accounts shall be held by the Master Servicers 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 WF Master Servicer Custodial
Account and the WMMSC Master Servicer Custodial Account is maintained shall
invest the funds therein as directed in writing by the related Master Servicer
in Permitted Investments, which shall mature not later than the Business Day
next preceding the Distribution Date (except that if such Permitted Investment
is an obligation of the institution that maintains such account, then such
Permitted Investment shall mature not later than such Distribution Date) and, in
each case, shall not be sold or disposed of prior to its maturity. All such
Permitted Investments shall be made in the name of the Trustee, for the benefit
of the Certificateholders. All WF Master Servicer Custodial Account Reinvestment
Income shall be for the benefit of the WF Master Servicer as part of its master
servicing compensation and shall be remitted to the WF Master Servicer monthly
as provided herein. All WMMSC Master Servicer Custodial Account Reinvestment
Income shall be for the benefit of the WMMSC Master Servicer as part of its
master servicing compensation and shall be remitted to the WMMSC Master Servicer
monthly as provided herein. The amount of any losses realized in a Master
Servicer Custodial Account incurred in any such account in respect of any such
investments shall promptly be deposited by the related Master Servicer from its
own funds in the related Master Servicer Custodial Account.
(f) Each institution at which the Certificate Account is maintained
shall invest the funds therein if directed in writing by the Securities
Administrator in Permitted Investments that are obligations of the institution
that maintains the Certificate Account, which shall mature on the Distribution
Date and shall not be sold or disposed of prior to its maturity. All such
Permitted Investments shall be made in the name of the Trustee, for the benefit
of the Certificateholders. All income and gains net of any losses realized since
the preceding Distribution Date from Permitted Investments of funds in the
Certificate Account shall be for the benefit of the Securities Administrator as
additional compensation and the amount of any losses realized in the Certificate
Account in respect of any such Permitted Investments shall promptly be deposited
by the Securities Administrator from its own funds in the Certificate Account.
(g) The Master Servicers shall give notice to the Depositor, the
Trustee, the Securities Administrator and the Rating Agencies of any proposed
change of location of each 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
Servicers and the Rating Agencies of any proposed change of the location of the
Certificate Account maintained by the Securities Administrator not later than 30
days after and not more than 45 days prior to any change thereof. The creation
of the Master Servicer Custodial Accounts and the Certificate Account shall be
evidenced by a certification substantially in the form of Exhibit F hereto.
(h) The Securities Administrator shall designate each of the Pooling
REMIC Sub-Account and the Upper-Tier Certificate Sub-Account as a sub-account of
the Certificate Account. On each Distribution Date (other than the Final
Distribution Date, if such Final Distribution Date is in connection with a
purchase of the assets of the Trust Estate by a Master Servicer), (i) the
Securities Administrator shall, from funds available on deposit in the
Certificate Account, be deemed to deposit into the Pooling REMIC Sub-Account all
funds deemed on deposit in the Group REMIC Sub-Accounts and (ii) immediately
thereafter, from funds deemed on deposit in the Pooling REMIC Sub-Account, the
Securities Administrator shall be deemed to deposit into the Upper-Tier
Certificate Sub-Account the Pooling REMIC Distribution Amount.
Section 3.10 Access to Certain Documentation and Information
Regarding the Mortgage Loans.
The WF Master Servicer shall afford and shall enforce the obligation
of the WF Servicers to afford and the WMMSC Master Servicer shall afford and
shall enforce the obligation of the WMMSC Servicers to afford, the Securities
Administrator and the Trustee reasonable access to all records and documentation
regarding the Mortgage Loans and all accounts, insurance information and other
matters relating to this Agreement, such access being afforded without charge,
but only upon reasonable request and during normal business hours at the office
designated by the related Master Servicer or the applicable Servicer.
Section 3.11 Permitted Withdrawals from the Certificate Account, the
Master Servicer Custodial Accounts and the Servicer Custodial Accounts.
(a) The WMMSC Master Servicer is authorized to make withdrawals from
time to time, from the WMMSC Master Servicer Custodial Account or the Servicer
Custodial Accounts established by any WMMSC Servicers of amounts deposited
therein in respect of the Certificates (and, to the extent applicable, to make
deposits of the amounts withdrawn), as follows:
(i) To reimburse itself or the applicable WMMSC Servicer for WMMSC
Advances made pursuant to Section 3.21 or a Servicing Contract, as
applicable, such right to reimbursement pursuant to this paragraph (i)
being limited to amounts received on particular Mortgage Loans (including,
for this purpose, Insurance Proceeds and Liquidation Proceeds) which
represent late recoveries of principal and/or interest respecting which
any such WMMSC Advance was made;
(ii) To reimburse itself or the applicable WMMSC Servicer for
amounts expended by or for the account of the WMMSC Master Servicer
pursuant to Section 3.15 or amounts expended by such WMMSC Servicer
pursuant to the Servicing Contracts in connection with the restoration of
property damaged by an Uninsured Cause or in connection with the
liquidation of a Mortgage Loan;
(iii) To pay to itself, with respect to the related WMMSC Master
Serviced Loans, the WMMSC Master Servicing Fee to which it is entitled to
pursuant to Section 3.18 (net of Compensating Interest reduced by Payoff
Earnings and Payoff Interest) as to which no prior withdrawals from funds
deposited by the WMMSC Master Servicer have been made;
(iv) To reimburse itself or the applicable WMMSC Servicer for
advances made with respect to related WMMSC Mortgage Loans (except for
WMMSC Mortgage Loans purchased pursuant to a Purchase Obligation or
pursuant to the second sentence of the third paragraph of Section 3.01(b))
which the WMMSC Master Servicer has determined to be Nonrecoverable
Advances, such reimbursement pursuant to this clause (iv) being made first
from amounts received on the WMMSC Mortgage Loans in the same Loan Group
as the Mortgage Loan in respect of which such Nonrecoverable Advance was
made;
(v) To pay itself any WMMSC Master Servicer Custodial Account
Reinvestment Income;
(vi) To reimburse itself for expenses incurred by and reimbursable
to it pursuant to Section 7.03;
(vii) To remit to the Securities Administrator for deposit in the
Certificate Account, not later than the related Remittance Date, the
amounts in the WMMSC Master Servicer Custodial Account specified in
Section 3.09(d);
(viii) To clear and terminate the WMMSC Master Servicer Custodial
Account and following termination of this Agreement pursuant to Section
10.01.
If the WMMSC Master Servicer fails to remit the funds described in
Section 3.11(a)(vii) above to the Securities Administrator on the applicable
Remittance Date (not considering any cure period afforded to the WMMSC Master
Servicer for such remittance under Section 8.01(a)), the WMMSC Master Servicer
shall pay to the Securities Administrator, for its own account, interest accrued
on such funds at the prime rate as set forth in The Wall Street Journal from and
including the applicable Remittance Date to but excluding the day such funds are
paid to the Securities Administrator.
Since, in connection with withdrawals pursuant to paragraphs (i) and
(ii), the WMMSC Master Servicer's entitlement thereto is limited to collections
or other recoveries on the related Mortgage Loan, the WMMSC Master Servicer or
the applicable WMMSC Servicer shall keep and maintain separate accounting for
each WMMSC Mortgage Loan, for the purpose of justifying any such withdrawals.
(b) The Securities Administrator shall withdraw funds from the
Certificate 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 amounts due itself or the Trustee under
this Agreement (including, but not limited to, the Securities Administrator Fee
and all amounts provided for under Section 9.11, other than the amounts provided
for in the first sentence of Section 9.11) and for distributions to
Certificateholders in the manner specified in this Agreement. In addition, the
WF Master Servicer may from time to time make withdrawals from the WF Master
Servicer Custodial Account for the following purposes:
(i) to pay to the WF Servicers (to the extent not previously
retained by them), the Servicing Fee to which they are entitled pursuant
to the Servicing Agreements and to pay itself any WF Master Servicer
Custodial Account Reinvestment Income;
(ii) [Reserved];
(iii) to reimburse the WF Servicers (or, if applicable, itself or
the Trustee) for unreimbursed Advances made pursuant to the related
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 serviced by
such WF Servicer in the related Loan Group in respect of which any such
Advance was made and then limited to amounts received on all the Mortgage
Loans serviced by such Servicer;
(iv) to reimburse the WF Servicers (or, if applicable, itself or the
Trustee) for any Nonrecoverable Advance previously made, such right of
reimbursement pursuant to this clause (iv) being limited first to amounts
received on the WF Master Serviced Loans serviced by such Servicer in the
same Loan Group as the Mortgage Loan(s) in respect of which such
Nonrecoverable Advance was made and then limited to amounts received on
all the Mortgage Loans serviced by such Servicer;
(v) to reimburse the WF Servicers for Insured Expenses from the
related Insurance Proceeds;
(vi) to pay to the purchaser, with respect to each Mortgage Loan or
REO Property that has been purchased pursuant to Section 2.02, 2.04, 2.09
or 3.15(g), 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 WF Master Servicer
Custodial Account and not required to be deposited therein; and
(ix) to clear and terminate the WF Master Servicer Custodial Account
upon termination of this Agreement pursuant to Section 10.01.
If a Master Servicer shall remit to the Securities Administrator any
amount not required to be remitted, it may at any time direct the Securities
Administrator to withdraw such amount from the Certificate Account, any
provision herein to the contrary notwithstanding. Such direction may be
accomplished by delivering an Officer's Certificate to the Securities
Administrator which describes the amounts remitted in error to the Securities
Administrator for deposit to the Certificate Account. In no event shall the
Securities Administrator incur liability for withdrawals from the Certificate
Account at the direction of either Master Servicer.
(c) Each Servicer and each Master Servicer is authorized to make
withdrawals, from time to time, from the related Servicer Custodial Account or
related Master Servicer Custodial Account, (i) to pay to itself, with respect to
the related Mortgage Loans, the Servicing Fee and (ii) to reimburse itself for
expenses to the same extent that the WMMSC Master Servicer is authorized to make
withdrawals to reimburse the applicable WMMSC Servicer for expenses pursuant to
clauses (i), (ii) and (iv) of Section 3.11(a), in the case of each of clause (i)
and (ii) of this Section 3.11(c), to the extent no prior withdrawals of such
amounts have been made by the related Servicer or the related Master Servicer.
(d) On each Distribution Date, funds on deposit in the Certificate
Account and deemed to be on deposit in the Group REMIC Sub-Accounts shall be
used to make payments on the Class 1-A-LR Certificate in respect of the Group
REMICs as provided in Sections 5.01 and 5.02. On each Distribution Date, funds
on deposit in the Certificate Account and deemed to be on deposit in the Pooling
REMIC Sub-Account shall be used to make payments on the Class 1-A-LR Certificate
in respect of the Pooling REMIC as provided in Sections 5.01 and 5.02. On each
Distribution Date, funds on deposit in the Certificate Account and deemed to be
on deposit in the Upper-Tier Certificate Sub-Account shall be used to make
payments on the Regular Certificates as provided in Sections 5.01 and 5.02. The
Certificate Account shall be cleared and terminated upon termination of this
Agreement pursuant to Section 10.01.
Section 3.12 Maintenance of Hazard Insurance and Other Insurance.
(a) For each WF Master Serviced Loan, the WF Master Servicer shall
enforce any obligation of the WF Servicers under the related Servicing
Agreements to maintain or cause to be maintained fire, flood and hazard
insurance with extended coverage customary in the area where the Mortgaged
Property is located in accordance with the related Servicing Agreements. It is
understood and agreed that such insurance provided for in this Section 3.12
shall be with insurers meeting the eligibility requirements set forth in the
applicable Servicing Agreement and that no earthquake or other additional
insurance is to be required of any Mortgagor or to be maintained on property
acquired in respect of a defaulted loan, other than pursuant to such applicable
laws and regulations as shall at any time be in force and as shall require such
additional insurance.
Pursuant to Sections 3.08 and 3.09, any amounts collected by the WF
Master Servicer, or by any WF Servicer, under any insurance policies (other than
amounts to be applied to the restoration or repair of the property subject to
the related Mortgage or released to the Mortgagor in accordance with the
applicable Servicing Agreement) shall be deposited into the applicable Master
Servicer Custodial Account, subject to withdrawal pursuant to Sections 3.09 and
3.11. Any cost incurred by the WF Master Servicer or any WF 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 WF Master Serviced Loan where
the terms of the WF Master Serviced 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 WF Master Servicer or such WF Servicer pursuant to Sections
3.08 and 3.09.
(b) WMMSC Master Servicer shall cause to be maintained for each
WMMSC Master Serviced Loan (other than a Cooperative Loan) fire insurance with
extended coverage in an amount which is not less than the original principal
balance of such WMMSC Master Serviced Loan, except in cases approved by the
WMMSC Master Servicer in which such amount exceeds the value of the improvements
to the Mortgaged Property. The WMMSC Master Servicer shall also require fire
insurance with extended coverage in a comparable amount on property acquired
upon foreclosure, or deed in lieu of foreclosure, of any WMMSC Master Serviced
Loan (other than a Cooperative Loan). Any amounts collected under any such
policies (other than amounts to be applied to the restoration or repair of the
related Mortgaged Property) shall be deposited into the related Servicer
Custodial Account, subject to withdrawal pursuant to Sections 3.09 and 3.11. Any
unreimbursed costs incurred in maintaining any insurance described in this
Section 3.12 shall be recoverable as an Advance by the WMMSC Master Servicer
from the WMMSC Master Servicer Custodial Account or the Certificate Account.
Such insurance shall be with insurers approved by the WMMSC Master Servicer and
FNMA or FHLMC. Other additional insurance may be required of a Mortgagor, in
addition to that required pursuant to such applicable laws and regulations as
shall at any time be in force and as shall require such additional insurance.
Where any part of any improvement to the Mortgaged Property (other than a
Mortgaged Property secured by a Cooperative Loan) is located in a federally
designated special flood hazard area and in a community which participates in
the National Flood Insurance Program at the time of origination of the related
WMMSC Master Serviced Loan, the WMMSC Master Servicer shall cause flood
insurance to be provided. The hazard insurance coverage required by this Section
3.12 may be met with blanket policies providing protection equivalent to
individual policies otherwise required. The WMMSC Master Servicer shall be
responsible for paying any deductible amount on any such blanket policy. The
WMMSC Master Servicer agrees to present, or cause to be presented, on behalf of
and for the benefit of the Trust, claims under the hazard insurance policy
respecting any WMMSC Master Serviced Loan, and in this regard to take such
reasonable actions as shall be necessary to permit recovery under such policy.
Section 3.13 Presentment of Claims and Collection of Proceeds.
The WF Master Servicer shall (to the extent provided in the
applicable Servicing Agreement) cause the related WF 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 WF Master
Servicer (or disbursed to a WF Servicer and remitted to the WF Master Servicer)
in respect of such policies, bonds or contracts shall be promptly deposited in
the WF 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.
(a) To the extent provided in the applicable Servicing Agreement and
to the extent WF Master Serviced Loans contain enforceable due-on-sale clauses,
the WF Master Servicer shall cause the WF Servicers to enforce such clauses in
accordance with the applicable Servicing Agreement. If applicable law prohibits
the enforcement of a due-on-sale clause or such clause is otherwise not enforced
in accordance with the applicable Servicing Agreement, and, as a consequence, a
WF Master Serviced Loan is assumed, the original Mortgagor may be released from
liability in accordance with the applicable Servicing Agreement.
(b) When any Mortgaged Property securing a WMMSC Master Serviced
Loan is about to be conveyed by the Mortgagor, the WMMSC Master Servicer shall,
to the extent it has knowledge of such prospective conveyance and prior to the
time of the consummation of such conveyance, exercise on behalf of the Trust the
Trust's rights to accelerate the maturity of such WMMSC Master Serviced Loan, to
the extent that such acceleration is permitted by the terms of the related
Mortgage Note, under any "due-on-sale" clause applicable thereto; provided,
however, that the WMMSC Master Servicer shall not exercise any such right if the
due-on-sale clause, in the reasonable belief of the WMMSC Master Servicer, is
not enforceable under applicable law or if such exercise would result in
non-coverage of any resulting loss that would otherwise be covered under any
insurance policy. In the event the WMMSC Master Servicer is prohibited from
exercising such right, the WMMSC Master Servicer is authorized to take or enter
into an assumption and modification agreement from or with the Person to whom a
Mortgaged Property has been or is about to be conveyed, pursuant to which such
Person becomes liable under the Mortgage Note and, unless prohibited by
applicable state law or unless the Mortgage Note contains a provision allowing a
qualified borrower to assume the Mortgage Note, the Mortgagor remains liable
thereon; provided that the WMMSC Master Serviced Loan shall continue to be
covered (if so covered before the WMMSC Master Servicer enters such agreement)
by any related Primary Mortgage Insurance Policy. The WMMSC Master Servicer is
also authorized to enter into a substitution of liability agreement with such
Person, pursuant to which the original Mortgagor is released from liability and
such Person is substituted as Mortgagor and becomes liable under the Mortgage
Note. The WMMSC Master Servicer shall not enter into any substitution or
assumption with respect to a WMMSC Master Serviced Loan if such substitution or
assumption shall (i) both constitute a "significant modification" effecting an
exchange or reissuance of such WMMSC Master Serviced Loan under the Code (or
Treasury regulations promulgated thereunder) and cause any REMIC created
hereunder to fail to qualify as a REMIC under the REMIC Provisions, (ii) cause
the imposition of any tax on "prohibited transactions" or "contributions" after
the startup day under the REMIC Provisions or (iii) change the applicable
Mortgage Interest Rate. The WMMSC Master Servicer shall notify the Trustee that
any such substitution or assumption agreement has been completed and shall
forward to the Custodian the original copy of such substitution or assumption
agreement and other documents and instruments constituting a part thereof. In
connection with any such assumption or substitution agreement, the terms of the
related Mortgage Note shall not be changed. Any fee collected by the applicable
WMMSC Servicer for entering into an assumption or substitution of liability
agreement shall be retained by such WMMSC Servicer as additional servicing
compensation.
Notwithstanding the foregoing paragraph or any other provision of
this Agreement, the WMMSC Master Servicer shall not be deemed to be in default,
breach or any other violation of its obligations hereunder by reason of any
assumption of a WMMSC Master Serviced Loan by operation of law or any assumption
which the WMMSC Master Servicer may be restricted by law from preventing, for
any reason whatsoever.
Section 3.15 Realization Upon Defaulted Mortgage Loans; REO
Property.
(a) The WF Master Servicer shall cause each WF Servicer (to the
extent required under the related Servicing Agreement) to foreclose upon or
otherwise comparably convert the ownership of Mortgaged Properties securing such
of the WF Master Serviced Loans as come into and continue in default and as to
which no satisfactory arrangements can be made for collection of delinquent
payments, all in accordance with the applicable Servicing Agreement.
(b) The WMMSC Master Servicer shall foreclose upon or otherwise
comparably convert, or cause to be foreclosed upon or comparably converted, the
ownership of any Mortgaged Property securing a WMMSC Master Serviced Loan which
comes into and continues in default and as to which no satisfactory arrangements
can be made for collection of delinquent payments pursuant to Section 3.01. In
lieu of such foreclosure or other conversion, and taking into consideration the
desirability of maximizing net Liquidation Proceeds after taking into account
the effect of Insurance Proceeds upon Liquidation Proceeds, the WMMSC Master
Servicer may, to the extent consistent with prudent mortgage loan servicing
practices, accept a payment of less than the outstanding Stated Principal
Balance of a delinquent WMMSC Master Serviced Loan in full satisfaction of the
indebtedness evidenced by the related Mortgage Note and release the lien of the
related Mortgage upon receipt of such payment. The WMMSC Master Servicer shall
not foreclose upon or otherwise comparably convert a Mortgaged Property if the
WMMSC Master Servicer is aware of evidence of toxic waste, other hazardous
substances or other evidence of environmental contamination thereon and the
WMMSC Master Servicer determines that it would be imprudent to do so. In
connection with such foreclosure or other conversion, the WMMSC Master Servicer
shall cause to be followed such practices and procedures as it shall deem
necessary or advisable and as shall be normal and usual in general mortgage
servicing activities. The foregoing is subject to the provision that, in the
case of damage to a Mortgaged Property from an Uninsured Cause, the WMMSC Master
Servicer shall not be required to advance its own funds towards the restoration
of the property unless it shall be determined in the sole judgment of the WMMSC
Master Servicer, (i) that such restoration will increase the proceeds of
liquidation of the Mortgage Loan to Certificateholders after reimbursement to
itself for such expenses, and (ii) that such expenses will be recoverable to it
through Liquidation Proceeds. The WMMSC Master Servicer shall be responsible for
all other costs and expenses incurred by it in any such proceedings; provided,
however, that it shall be entitled to reimbursement thereof (as well as its
normal servicing compensation) as an Advance. The WMMSC Master Servicer shall
maintain information required for tax reporting purposes regarding any Mortgaged
Property securing a WMMSC Master Serviced Loan which is abandoned or which has
been foreclosed or otherwise comparably converted. The WMMSC Master Servicer
shall report such information to the Internal Revenue Service and the Mortgagor
in the manner required by applicable law.
(c) With respect to any REO Property, the deed or certificate of
sale shall be taken in the name of the Trust for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. The WF
Master Servicer shall enforce the obligation of the WF Servicers, to the extent
provided in the applicable Servicing Agreement, to (i) cause the name of the
Trust to be placed on the title to such REO Property and (ii) ensure that the
title to such REO Property references this Agreement. The WF Master Servicer
shall, to the extent provided in the applicable Servicing Agreement, cause the
applicable WF Servicer to sell any REO Property as expeditiously as possible and
in accordance with the provisions of this Agreement and the related Servicing
Agreement, as applicable. Pursuant to its efforts to sell such REO Property, the
WF Master Servicer shall cause the applicable Servicer to protect and conserve
such REO Property in the manner and to the extent required by the applicable
Servicing Agreement, subject to the REMIC Provisions. In the event that the
Trust Estate acquires any Mortgaged Property as aforesaid or otherwise in
connection with a default or imminent default on a WF Master Serviced Loan, the
WF Master Servicer shall enforce the obligation of the related WF Servicer to
dispose of such Mortgaged Property within the time period specified in the
applicable Servicing Agreement unless the WF 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.
In the event that the Trust acquires any real property (or personal
property incident to such real property) in connection with a default or
imminent default of a WMMSC Master Serviced Loan or any REO Property relating to
a WMMSC Master Serviced Loan, such property shall be disposed of by the WMMSC
Master Servicer as soon as practicable in a manner that, consistent with prudent
mortgage loan servicing practices, maximizes the net present value of the
recovery to the Trust, but in any event within three years after its acquisition
by the WMMSC Master Servicer for the Trust (such period, the "REO Disposition
Period") unless the WMMSC Master Servicer provides to the Trustee and the
Securities Administrator an Opinion of Counsel to the effect that the holding by
the Trust of such Mortgaged Property subsequent to three years after its
acquisition will not result in the imposition of taxes on "prohibited
transactions" of the Trust as defined in Section 860F of the Code or under the
law of any state in which real property securing a WMMSC Master Serviced Loan
owned by the Trust is located or cause the applicable REMIC to fail to qualify
as a REMIC for federal income tax purposes or for state tax purposes under the
laws of any state in which real property securing a WMMSC Master Serviced Loan
owned by the Trust is located at any time that any Certificates are outstanding.
The WMMSC Master Servicer shall either itself or through an agent selected by
the WMMSC Master Servicer protect and conserve such property in the same manner
and to such extent as is customary in the locality where such property is
located and may, incident to its conservation and protection of the assets of
the Trust, rent the same, or any part thereof, as the WMMSC Master Servicer
deems to be in the best interest of the WMMSC Master Servicer and the Trust for
the period prior to the sale of such property. Additionally, the WMMSC Master
Servicer shall perform the tax withholding and shall file information returns
with respect to the receipt of mortgage interests received in a trade or
business, the reports of foreclosures and abandonments of any Mortgaged Property
and the information returns relating to cancellation of indebtedness income with
respect to any Mortgaged Property required by Sections 6050H, 6050J and 6050P,
respectively, of the Code. Such reports shall be in form and substance
sufficient to meet the reporting requirements imposed by Sections 6050H, 6050J
and 6050P of the Code.
(d) The WF Master Servicer shall, to the extent required by the
related Servicing Agreement, cause the applicable Servicer to deposit all funds
collected and received in connection with the operation of any REO Property in
the Servicer Custodial Account.
(e) The applicable WF Servicer, upon the final disposition of any
REO Property, shall be entitled to reimbursement for any related unreimbursed
Advances (other than WF Servicer Servicing 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 Advances (other than WF Servicer Servicing Advances) as well
as any unpaid Servicing Fees may be reimbursed or paid, as the case may be,
prior to final disposition, out of any net rental income or other net amounts
derived from such REO Property.
(f) The Liquidation Proceeds from the final disposition of the REO
Property, net of any payment to the applicable WF Servicer as provided above
shall be deposited in the related Servicer Custodial Account on or prior to the
Determination Date in the month following receipt thereof and be remitted by
wire transfer in immediately available funds to the related WF Servicer for
deposit into the related Servicer Custodial Account.
Notwithstanding any other provision of this Agreement, neither
Master Servicer shall permit any Mortgaged Property acquired by the Trust to be
rented (or allowed to continue to be rented) or otherwise used for the
production of income by or on behalf of the Trust in such a manner or pursuant
to any terms that would (i) cause such Mortgaged Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code,
(ii) result in the receipt by any REMIC 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 any REMIC created hereunder to the imposition of any
federal, state or local income taxes on the income earned from such Mortgaged
Property under Section 860G(c) of the Code or otherwise, unless the related
Master Servicer or related Servicer, as applicable, has agreed to indemnify and
hold harmless the Trust with respect to the imposition of any such taxes.
Notwithstanding any other provision of this Agreement, the Master
Servicers 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 Servicers 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 related 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.
(g) On the 2nd Business Day prior to the related Distribution Date,
the WF Master Servicer shall notify the Depositor of any WF Master Serviced Loan
which is 180 days or more delinquent. The Depositor shall be entitled, at its
option, to repurchase any such delinquent WF Master Serviced Loan from the Trust
Estate if in the Depositor's judgment, the default is not likely to be cured by
the Mortgagor. The purchase price for any such Mortgage Loan shall be 100% of
the unpaid principal balance of such Mortgage Loan plus accrued interest thereon
at the Mortgage Interest Rate through the last day of the month in which such
repurchase occurs. The Depositor shall notify the related WF Servicer and the WF
Master Servicer of its intent to repurchase such Mortgage Loan. Upon the receipt
of such purchase price, the WF Master Servicer shall provide to the Trustee the
notification required by Section 3.16 and the Trustee shall promptly release to
the Depositor the Mortgage File relating to the Mortgage Loan being repurchased.
Section 3.16 Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any WF Master Serviced Loan, or the
receipt by the WF Master Servicer or the related WF Servicer of a notification
that payment in full will be escrowed in a manner customary for such purposes,
the WF Master Servicer or the related WF Servicer will immediately notify the
Trustee by delivering, or causing to be delivered, two copies (one of which will
be returned to the related WF Servicer with the Mortgage File) of a Request for
Release (which may be delivered in an electronic format acceptable to the
Trustee and the WF Master Servicer or the related WF Servicer). Upon receipt of
such request, the Trustee shall within seven Business Days release the related
Mortgage File to the WF Master Servicer or the related WF Servicer. The Trustee
shall at the WF Master Servicer's or the related WF Servicer's direction execute
and deliver to the WF Master Servicer or the related WF 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 WF Master
Serviced Loan, in each case provided by the WF Master Servicer or the related WF
Servicer, together with the Mortgage Note with written evidence of cancellation
thereon. If the Mortgage has been recorded in the name of MERS or its designee,
the WF Master Servicer shall enforce the applicable WF Servicer's obligation
under the related Servicing Agreement take all necessary action to reflect the
release of the Mortgage on the records of MERS. Expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be chargeable
to the related Mortgagor of the WF Master Serviced Loan.
Upon the Payoff or receipt of final payment upon maturity of any
WMMSC Master Serviced Loan, the WMMSC Master Servicer shall cause such final
payment to be immediately deposited in the related Servicer Custodial Account or
the WMMSC Master Servicer Custodial Account. The WMMSC Master Servicer shall
promptly notify the Custodian, on behalf of the Trustee, thereof by delivering
or causing to be delivered two copies (one of which will be returned to the
WMMSC Master Servicer with the Mortgage File) of a Request for Release (which
may be delivered in an electronic format acceptable to the Custodian and the
WMMSC Master Servicer). Upon receipt of such request, the Custodian, on behalf
of the Trustee, shall, not later than the seventh succeeding Business Day,
release, or cause to be released, the related Mortgage File to the WMMSC Master
Servicer or the applicable WMMSC Servicer indicated in such Request for Release.
With any such Payoff or other final payment, the WMMSC Master Servicer is
authorized (i) to prepare for and procure from the trustee or mortgagee under
the Mortgage which secured the Mortgage Note a deed of full reconveyance or
other form of satisfaction or assignment of Mortgage and endorsement of Mortgage
Note in connection with a refinancing covering the Mortgaged Property, which
satisfaction, endorsed Mortgage Note or assigning document shall be delivered by
the WMMSC Master Servicer to the person or persons entitled thereto, and (ii) if
the Mortgage has been recorded in the name of MERS or its designee, to cause the
removal of such WMMSC Master Serviced Loan from registration on the MERS system.
No expenses incurred in connection with such satisfaction or assignment shall be
payable to the WMMSC Master Servicer by the Trustee or the Securities
Administrator or from the Certificate Account, the related WMMSC Master Servicer
Custodial Account or the related Servicer Custodial Account.
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 related Master Servicer or the related Servicer. Subject to the
further limitations set forth below, the related Master Servicer or the
applicable Servicer shall cause the Mortgage Files so released to be returned to
the Trustee or the Custodian, as applicable, when the need therefor no longer
exists, unless the Mortgage Loan is liquidated and the proceeds thereof are
deposited in the Servicer Custodial Account, in which case such Servicer shall
deliver to the Trustee or the Custodian, as applicable, a Request for Release,
signed by a Servicing Officer.
If the related Master Servicer or any related Servicer at any time
seeks to initiate a foreclosure proceeding in respect of any Mortgaged Property
as authorized by this Agreement or the Servicing Agreement, the related Master
Servicer or any related Servicer shall deliver or cause to be delivered to the
Trustee, for signature, as appropriate, any court pleadings, requests for
trustee's sale or other documents necessary to effectuate such foreclosure or
any legal action brought to obtain judgment against the Mortgagor on the
Mortgage Note or the Mortgage or to obtain a deficiency judgment or to enforce
any other remedies or rights provided by the Mortgage Note or the Mortgage or
otherwise available at law or in equity.
Section 3.17 Documents, Records and Funds in Possession of the
Master Servicer to be Held for the Trustee.
(a) Notwithstanding any other provisions of this Agreement, the WF
Master Servicer shall cause each WF Servicer to transmit to the Trustee as
required by this Agreement and the Servicing Agreements all documents and
instruments in respect of a WF Master Serviced Loan coming into the possession
of the WF Servicer from time to time and shall account fully to the Trustee for
any funds received by the WF Master Servicer or the related WF Servicer or which
otherwise are collected by the WF Master Servicer or the related WF Servicer as
Liquidation Proceeds, Recoveries or Insurance Proceeds in respect of any WF
Master Serviced Loan. All Mortgage Files and funds collected or held by, or
under the control of, the WF Master Servicer or the related Servicer in respect
of any WF Master Serviced Loans, whether from the collection of principal and
interest payments or from Liquidation Proceeds, including but not limited to,
any funds on deposit in the Certificate Account or any Servicer Custodial
Account, shall be held by the WF Master Servicer or the related WF Servicer for
and on behalf of the Trustee and shall be and remain the sole and exclusive
property of the Trustee, subject to the applicable provisions of this Agreement
and the related Servicing Agreement.
(b) The WMMSC Master Servicer shall transmit to the Custodian, on
behalf of the Trustee, as required by this Agreement all documents and
instruments in respect of WMMSC Master Serviced Loan coming into the possession
of the WMMSC Master Servicer or a WMMSC Servicer from time to time and shall
account fully to the Trustee for any funds received by the WMMSC Master Servicer
or WMMSC Servicer or which otherwise are collected by the WMMSC Master Servicer
or WMMSC Servicer as Liquidation Proceeds or Insurance Proceeds in respect of
any WMMSC Master Serviced Loan. The documents constituting the Servicing File
for each WMMSC Master Serviced Loan shall be held by the WMMSC Master Servicer
or WMMSC Servicer as custodian and bailee for the Trustee. All Mortgage Files
and, to the extent not constituting compensation payable to the WMMSC Master
Servicer or WMMSC Servicer, funds collected or held by, or under the control of,
the WMMSC Master Servicer or WMMSC Servicer in respect of any WMMSC Master
Serviced 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 WMMSC Master Servicer Custodial Account or a Servicer Custodial Account
for a WMMSC Servicer, shall be held by the WMMSC Master Servicer or WMMSC
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.
Each Master Servicer also agrees that it shall not, and shall insure
that the related Servicer shall not, knowingly create, incur or subject any
Mortgage File or any funds that are deposited in any Master Servicer Custodial
Account, any Servicer Custodial Account, the Certificate Account or any Escrow
Account, or any funds that otherwise are or may become due or payable to the
Trustee for the benefit of the Certificateholders, to any claim, lien, security
interest, judgment, levy, writ of attachment or other encumbrance created by
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 each Master Servicer
shall be entitled to set off against and deduct from any such funds any amounts
that are properly due and payable to such Master Servicer under this Agreement.
Section 3.18 Master Servicer Compensation and Servicer Compensation.
(a) As compensation for its services hereunder, the WMMSC Master
Servicer shall be entitled to an amount equal to the WMMSC Master Servicing Fee
for such Distribution Date payable in accordance with Section 3.11(a)(iii). As
compensation for its services hereunder, the WF Master Servicer shall be
entitled to a fee in an amount agreed upon between the WF Master Servicer and
the Securities Administrator, payable by the Securities Administrator out of its
own funds and not out of any funds of the Trust Estate. The WMMSC Master
Servicer shall also be entitled to additional compensation in the form of the
WMMSC Master Servicer Custodial Account Reinvestment Income and the WF Master
Servicer shall also be entitled to additional compensation in the form of the WF
Master Servicer Custodial Account Reinvestment Income. Each Master Servicer
shall be required to pay all expenses incurred by it in connection with its
master servicing activities hereunder and shall not be entitled to reimbursement
therefor except as specifically provided in this Agreement.
(b) As compensation for its activities under the applicable
Servicing Contract, the applicable WMMSC Servicer shall be entitled to withhold
or withdraw from the related Servicer Custodial Account the amounts provided for
in such Servicing Contract to the extent not inconsistent with this Agreement.
Each WMMSC Servicer is required to pay all expenses incurred by it in connection
with its servicing activities under its Servicing Contract (including payment of
premiums for Primary Mortgage Insurance Policies, if required) and shall not be
entitled to reimbursement therefor except as specifically provided in such
Servicing Contract and not inconsistent with this Agreement.
Section 3.19 Annual Statement as to Compliance.
Each Master Servicer shall deliver to the Securities Administrator
(and the Securities Administrator will forward to the Trustee and each Rating
Agency), no later than March 15 following the end of each calendar year
commencing with March 2005, an Officer's Certificate, signed by two officers of
such Master Servicer, stating, as to the signers thereof, that (a) a review of
the activities of such Master Servicer during the preceding calendar year and of
the performance of such Master Servicer under this Agreement or similar
agreements has been made under such officer's supervision, and (b) to the best
of such officer's knowledge, based on such review, such Master Servicer has
fulfilled all its obligations under this Agreement throughout such year, or, if
there has been a default in the fulfillment of any such obligation, specifying
each such default known to such officer and the nature and status thereof.
In addition, the WF Master Servicer shall enforce each WF Servicer's
obligation under the related Servicing Agreement to provide a similar statement
to the Securities Administrator relating to compliance with the related
Servicing Agreement.
Section 3.20 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
The WF Master Servicer shall enforce each WF Servicer's obligation
under the related Servicing Agreement to provide a report to the Securities
Administrator, as required to be provided each year pursuant to each Servicing
Agreement, prepared by a firm of independent public accountants (who may also
render other services to such WF Servicer or any affiliate thereof) which is a
member of the American Institute of Certified Public Accountants to the effect
that such firm has, with respect to such WF Servicer's overall servicing
operations, examined such operations in accordance with the requirements of the
Uniform Single Attestation Program for Mortgage Bankers, and stating such firm's
conclusions relating thereto.
Commencing in the calendar year following the date of this
Agreement, on or before the 15th day (or if not a Business Day, the immediately
preceding Business Day) preceding the latest day in each year on which an annual
report on Form 10-K may be timely filed with the Securities and Exchange
Commission (without regard to any extension), the WMMSC Master Servicer, at its
expense, shall cause a firm of independent public accountants which is a member
of the American Institute of Certified Public Accountants to furnish a statement
to the Securities Administrator (and the Securities Administrator shall forward
such statement to the Trustee) to the effect that such firm has with respect to
the WMMSC Master Servicer's overall master servicing operations, examined such
operations in accordance with the requirements of the Uniform Single Attestation
Program for Mortgage Bankers applicable to master servicers, stating such firm's
conclusions relating thereto.
Section 3.21 Advances.
(a) The WF Master Servicer shall enforce the obligations of each WF
Servicer to make a WF Servicer Periodic Advance in accordance with the
applicable Servicing Agreement. A WF Servicer shall be entitled to be reimbursed
from the WF Master Servicer Custodial Account for all Advances of its own funds
made pursuant to the related Servicing Agreement. Based upon information set
forth in the servicer reports, the WF Master Servicer shall inform the
Securities Administrator of the amount of the WF Servicer Periodic Advance to be
made by a WF Servicer with respect to each Loan Group on each applicable Advance
Date no later than the related Remittance Date. If a WF Servicer fails to make
any required Advance pursuant to the related Servicing Agreement, the WF Master
Servicer shall (i) unless the WF Master Servicer determines that such Advance
would not be recoverable in its good faith business judgment, make such 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 WF Servicer and until
such time as a successor WF Servicer is appointed, continue to make Advances
required pursuant to the related Servicing Agreement for any Distribution Date,
within the same time frame set forth in (i) above, unless the WF Master Servicer
determines (to the extent provided in the related Servicing Agreement) that such
Advance would not be recoverable; provided that if the WF Servicer that fails to
make such Advance is Xxxxx Fargo Bank, the Trustee shall have such obligation to
make such Advance set forth in this paragraph.
(b) To the extent described below, the WMMSC Master Servicer is
obligated to advance its own funds and remit such Advance to the Certificate
Account to cover any shortfall between (i) payments scheduled to be received in
respect of WMMSC Master Serviced Loans (without giving effect to any Debt
Service Reduction being contested by the WMMSC Master Servicer or a WMMSC
Servicer), and (ii) the amounts actually deposited in the Certificate Account on
account of such payments. The WMMSC Master Servicer's obligation to make any
advance or advances described in this Section 3.21 is effective only to the
extent that such advance is, in the good faith judgment of the WMMSC Master
Servicer made on or before the second Business Day prior to each Distribution
Date, reimbursable from Insurance Proceeds or Liquidation Proceeds of the
related WMMSC Master Serviced Loans or recoverable as late Monthly Payments with
respect to the related WMMSC Master Serviced Loans or otherwise. The WMMSC
Master Servicer's obligation to make an Advance with respect to any WMMSC Master
Serviced Loan shall continue until the ultimate disposition of the REO Property
or Mortgaged Property relating to such WMMSC Master Serviced Loan.
Prior to the close of business on the second Business Day prior to
each Distribution Date, the WMMSC Master Servicer shall determine whether or not
it will make an Advance on the Business Day prior to such Distribution Date (in
the event that the applicable WMMSC Servicer fails to make such advances) and
shall furnish a written statement to the Securities Administrator, the Paying
Agent, if any, and to any Certificateholder requesting the same, setting forth
the aggregate amount to be advanced on account of principal and interest in
respect of the WMMSC Master Serviced Loans, stated separately.
In the event that the WMMSC Master Servicer shall be required to
make an Advance, it shall on the applicable Advance Date relating to each
Distribution Date either (i) remit to the Securities Administrator for deposit
in the Certificate Account an amount equal to such Advance, (ii) make an
appropriate entry in the records of the WMMSC Master Servicer Custodial Account
that funds in such account that are Amounts Held for Future Distribution have
been, as permitted by this Section 3.21, used by the WMMSC Master Servicer to
make such Advance, or (iii) make advances in the form of any combination of (i)
and (ii) aggregating the amount of such Advance. Any Amounts Held for Future
Distribution shall be replaced by the WMMSC Master Servicer by deposit in the
WMMSC Master Servicer Custodial Account on the applicable Remittance Date
relating to any future Distribution Date to the extent that funds in the WMMSC
Master Servicer Custodial Account on such Distribution Date with respect to the
Mortgage Loans shall be less than the amounts required to be remitted to the
Certificate Account on such Remittance Date. Under each Servicing Contract, the
WMMSC Master Servicer is entitled to receive from the Servicer Custodial
Accounts established by the WMMSC Servicers amounts received by the applicable
WMMSC Servicers on particular WMMSC Master Serviced Loans as late payments of
principal and interest or as Liquidation Proceeds or Insurance Proceeds and
respecting which the WMMSC Master Servicer has made an unreimbursed advance of
principal and interest. The WMMSC Master Servicer is also entitled to receive
other amounts from the related Servicer Custodial Accounts established by the
WMMSC Servicers to reimburse itself for prior Nonrecoverable Advances respecting
WMMSC Master Serviced Loans serviced by such WMMSC Servicers. The WMMSC Master
Servicer shall deposit these amounts in the WMMSC Master Servicer Custodial
Account prior to withdrawal pursuant to Section 3.11.
In accordance with Section 3.11, Advances are reimbursable to the
WMMSC Master Servicer from cash in the WMMSC Master Servicer Custodial Account
or the Certificate Account to the extent that the WMMSC Master Servicer shall
determine that any such Advances previously made are Nonrecoverable Advances
pursuant to Section 3.21(c).
(c) Any advance previously made by the WMMSC Master Servicer or by a
WMMSC Servicer pursuant to its Servicing Contract with respect to a WMMSC Master
Serviced Loan that the WMMSC Master Servicer shall determine in its good faith
judgment not to be ultimately recoverable from Insurance Proceeds or Liquidation
Proceeds or otherwise with respect to such WMMSC Master Servicer Mortgage Loan
or recoverable as late Monthly Payments with respect to such Mortgage Loan shall
be a "Nonrecoverable Advance". The determination by the WMMSC Master Servicer
that it or the applicable WMMSC Servicer has made a Nonrecoverable Advance or
that any advance would constitute a Nonrecoverable Advance, shall be evidenced
by an Officer's Certificate of the WMMSC Master Servicer delivered to the
Securities Administrator on the Determination Date and detailing the reasons for
such determination. Notwithstanding any other provision of this Agreement, any
insurance policy relating to the WMMSC Master Serviced Loans, or any other
agreement relating to the WMMSC Master Serviced Loans to which the Depositor or
the WMMSC Master Servicer is a party, (i) the WMMSC Master Servicer and each
WMMSC Servicer shall not be obligated to, and shall not, make any advance that,
after reasonable inquiry and in its sole discretion, the WMMSC Master Servicer
or such WMMSC Servicer shall determine would be a Nonrecoverable Advance, and
(ii) the WMMSC Master Servicer and each WMMSC Servicer shall be entitled to
reimbursement for any advance as provided in Section 3.11(a)(i), (ii) and (iv)
of this Agreement.
Section 3.22 Reports to the Securities and Exchange Commission.
(a) The Securities Administrator and the Master Servicers shall
reasonably cooperate with the Depositor in connection with the Trust's
satisfying its reporting requirements under the Exchange Act. Without limiting
the generality of the foregoing, the Securities Administrator shall prepare on
behalf of the Trust any monthly Current Reports on Form 8-K (each, a "Monthly
Form 8-K") and Annual Reports on Form 10-K (each, a "Form 10-K") customary for
similar securities as required by the Exchange Act and the rules and regulations
of the Securities and Exchange Commission thereunder, and the Securities
Administrator shall sign and file (via the Securities and Exchange Commission's
Electronic Data Gathering and Retrieval System) such Forms (other than any
Annual Report on Form 10-K, which shall be signed by the Depositor) on behalf of
the Trust. Notwithstanding the previous sentence, the Depositor shall file the
Monthly Form 8-K in connection with the filing of this Agreement.
(b) Each Monthly Form 8-K shall be filed by the Securities
Administrator within 15 days after each Distribution Date, including a copy of
the monthly statement to Certificateholders delivered pursuant to Section
5.04(b) (each, a "Distribution Date Statement") for such Distribution Date as an
exhibit thereto. On or prior to March 30th of each year (or such earlier date as
may be required by the Exchange Act and the rules and regulations of the
Securities and Exchange Commission), commencing in the calendar year following
the date of this Agreement, the Securities Administrator shall file a Form 10-K,
in substance as required by applicable law or applicable Securities and Exchange
Commission staff's interpretations. Such Form 10-K shall include as exhibits
each Master Servicer's and each Servicer's annual statement of compliance
described under Section 3.19 and the accountant's reports referenced under
Section 3.20, in each case, to the extent they have been timely delivered to the
Securities Administrator. If they are not so timely delivered, the Securities
Administrator shall file an amended Form 10-K including such documents as
exhibits reasonably promptly after they are delivered to the Securities
Administrator. The Securities Administrator shall have no liability with respect
to any failure to properly prepare or file such periodic reports resulting from
or relating to the Securities Administrator's inability or failure to obtain any
information not resulting from its own negligence, willful misconduct or bad
faith. The Form 10-K shall also include a certification in the form attached
hereto as Exhibit O (the "Certification"), which shall be signed by a senior
officer of the Depositor in charge of securitization. The Depositor shall
deliver the Certification to the Securities Administrator three (3) Business
Days prior to the latest date on which the Form 10-K may be timely filed. The
Securities Administrator, the Depositor and the Master Servicers shall
reasonably cooperate to enable the Securities and Exchange Commission
requirements with respect to the Trust to be met in the event that the
Securities and Exchange Commission issues additional interpretive guidelines or
promulgates rules or regulations, or in the event of any other change of law
that would require reporting arrangements or the allocation of responsibilities
with respect thereto, as described in this Section 3.22, to be conducted or
allocated in a different manner.
(c) Prior to the latest date on which the Form 10-K may be timely
filed each year, the Securities Administrator shall sign and deliver to the
Depositor a certification (in the form attached hereto as Exhibit P) for the
benefit of the Depositor and its officers, directors and affiliates (provided,
however, that the Securities Administrator shall not undertake an analysis of
any accountants' report attached as an exhibit to the Form 10-K). In addition,
the Securities Administrator shall indemnify and hold harmless the Depositor,
each person, if any, who "controls" the Depositor within the meaning of the 1933
Act, as amended and their respective officers, directors, agents and affiliates
(collectively, the "Depositor Indemnified Parties") from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments and other costs and expenses arising out of or based
upon any inaccuracy in the certification provided by the Securities
Administrator pursuant to this Section 3.22(c), any breach by the Securities
Administrator or any of its officers, directors, agents or affiliates of its
obligations under this Section 3.22(c) or any material misstatements or omission
contained in the certification delivered pursuant to this Section 3.22(c) or the
Securities Administrator's negligence, bad faith or willful misconduct in
connection therewith. If the indemnification provided for herein is unavailable
or insufficient to hold harmless the Depositor Indemnified Parties, then the
Securities Administrator agrees that it shall contribute to the amount paid or
payable by such Depositor Indemnified Parties as a result of the losses, claims,
damages or liabilities of such Depositor Indemnified Parties in such proportion
as is appropriate to reflect the relative fault of such Depositor Indemnified
Parties on the one hand and the Securities Administrator on the other in
connection with a breach of the Securities Administrator's obligations under
this Section 3.22(c), any material misstatement or omission contained in the
certification delivered pursuant to this Section 3.22(c) or the Securities
Administrator's negligence, bad faith or willful misconduct in connection
therewith. Each Master Servicer hereby acknowledges and agrees that the
Depositor and the Securities Administrator are relying on the each Master
Servicer's performance of its obligations under Sections 3.19 and 3.20 in order
to perform their respective obligations under this Section 3.22.
(d) (i)Prior to the latest date on which the Form 10-K may be timely
filed each year, the WMMSC Master Servicer shall sign and deliver to the
Depositor a certification (in the form attached hereto as Exhibit Q) for the
benefit of the Depositor and its officers, directors and affiliates. In
addition, the WMMSC Master Servicer shall indemnify and hold harmless the
Depositor Indemnified Parties from and against any losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments and other costs and expenses arising out of or based upon any
inaccuracy in the certification provided by the WMMSC Master Servicer pursuant
to this Section 3.22(d)(i), any breach by the WMMSC Master Servicer or any of
its officers, directors, agents or affiliates of its obligations under this
Section 3.22(d)(i) or any material misstatement or omission contained in the
certification delivered pursuant to this Section 3.22(d)(i) or the WMMSC Master
Servicer's negligence, bad faith or willful misconduct in connection therewith.
If the indemnification provided for herein is unavailable or insufficient to
hold harmless the Depositor Indemnified Parties, then the WMMSC Master Servicer
agrees that it shall contribute to the amount paid or payable by such Depositor
Indemnified Parties as a result of the losses, claims, damages or liabilities of
such Depositor Indemnified Parties in such proportion as is appropriate to
reflect the relative fault of such Depositor Indemnified Parties on the one hand
and the WMMSC Master Servicer on the other in connection with a breach of the
WMMSC Master Servicer's obligations under this Section 3.22(d)(i), any material
misstatement or omission contained in the certificate delivered pursuant to
3.22(d)(i) or the WMMSC Master Servicer's negligence, bad faith or willful
misconduct in connection therewith.
(ii) Prior to the latest date on which the Form 10-K may be timely
filed each year, the WF Master Servicer shall sign and deliver to the
Depositor a certification (in the form attached hereto as Exhibit R) for
the benefit of the Depositor and its officers, directors and affiliates.
In addition, the WF Master Servicer shall indemnify and hold harmless the
Depositor Indemnified Parties from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments and other costs and expenses arising out of or
based upon any inaccuracy in the certification provided by the WF Master
Servicer pursuant to this Section 3.22(d)(ii), any breach by the WF Master
Servicer or any of its officers, directors, agents or affiliates of its
obligations under this Section 3.22(d)(ii) or any material misstatement or
omission contained in the certification delivered pursuant to this Section
3.22(d)(ii) or the WF Master Servicer's negligence, bad faith or willful
misconduct in connection therewith. If the indemnification provided for
herein is unavailable or insufficient to hold harmless the Depositor
Indemnified Parties, then the WF Master Servicer agrees that it shall
contribute to the amount paid or payable by such Depositor Indemnified
Parties as a result of the losses, claims, damages or liabilities of such
Depositor Indemnified Parties in such proportion as is appropriate to
reflect the relative fault of such Depositor Indemnified Parties on the
one hand and the WF Master Servicer on the other in connection with a
breach of the WF Master Servicer's obligations under this Section
3.22(d)(ii), any material misstatement or omission contained in the
certificate delivered pursuant to 3.22(d)(ii) or the WF Master Servicer's
negligence, bad faith or willful misconduct in connection therewith
(e) Prior to the latest date on which the Form 10-K may be timely
filed each year, the WF Master Servicer shall enforce the obligation of each WF
Servicer to provide the certification required pursuant to each of the Servicing
Agreements. Prior to the latest date on which the Form 10-K may be timely filed
each year, the WMMSC Master Servicer shall take all commercially reasonable
efforts to enforce the obligation of each WMMSC Servicer, if applicable, to
provide the certification required pursuant to each respective Servicing
Contract.
(f) Upon any filing with the Securities and Exchange Commission, the
Securities Administrator shall promptly deliver to the Depositor a copy of any
such executed report, statement or information.
(g) The obligations set forth in paragraphs (a) through (f) of this
Section shall only apply with respect to periods for which the Securities
Administrator is obligated to file reports on Form 8-K or 10-K pursuant to
paragraph (b) of this Section. Upon request of the Depositor, the Securities
Administrator shall prepare, execute and file with the Securities and Exchange
Commission a Form 15 Suspension Notification with respect to the Trust.
ARTICLE IV
MASTER SERVICER'S CERTIFICATE
Section 4.01 Master Servicer's Certificate.
(a) 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 WF Master Servicer shall deliver to the Securities
Administrator, a Master Servicer's Certificate (in substance and format mutually
acceptable to the WF Master Servicer and the Securities Administrator) certified
by a Master Servicing Officer of the WF 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 WF Master Servicer for all purposes hereunder and shall have no duty to
verify or re-compute any of the information contained therein.
(b) Each month, not later than 12:00 noon Eastern time no later than
five (5) Business Days prior to the related Distribution Date, the WMMSC Master
Servicer shall deliver to the Securities Administrator, a Master Servicer's
Certificate (in an electronic format mutually acceptable to the WMMSC Master
Servicer and the Securities Administrator) certified by a Master Servicing
Officer of the WMMSC Master Servicer setting forth any loan-level information
necessary for the Securities Administrator to perform its obligations under
Article V of this Agreement, including, but not limited to, (1) the amount, as
applicable, of (i) interest, (ii) the interest portion, if any, of Realized
Losses, (iii) Non-Supported Interest Shortfalls, (iv) scheduled principal, (v)
Payoffs and Curtailments, (vi) the principal portion of Realized Losses, (vii)
the Pool Distribution Amount for each Loan Group and (viii) the Excess Proceeds
to be distributed or allocated, as applicable, to each Class of Certificates on
such Distribution Date; and (2) information regarding delinquencies on the WMMSC
Mortgage Loans, indicating the number and aggregate Stated Principal Balance of
WMMSC Mortgage Loans which are one, two, three or more months delinquent, the
number and aggregate Stated Principal Balance of WMMSC Mortgage Loans with
respect to which foreclosure proceedings have been initiated and the book value
of any Mortgaged Property acquired by the Trust through foreclosure, deed in
lieu of foreclosure or other exercise of the Trust's security interest in the
Mortgaged Property. The Securities Administrator may conclusively rely upon the
information contained in a Master Servicer's Certificate delivered by the WMMSC
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 Certificates, the Securities
Administrator shall distribute or be deemed to distribute, as applicable, out of
the Certificate Account or the Upper-Tier Certificate Sub-Account, as applicable
(to the extent funds are available therein), to each Certificateholder of record
on the related Record Date (other than as provided in Section 10.01 respecting
the final distribution) (a) by check mailed to such Certificateholder entitled
to receive a distribution on such Distribution Date at the address appearing in
the Certificate Register, or (b) upon written request by the Holder of a
Certificate (other than 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 below in Section 5.02.
None of the Holders of any Class of Certificates, the Depositor, the
Master Servicers, 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 Certificates, the Securities Administrator
shall withdraw from the Certificate Account (to the extent funds are available
therein) (1) to the extent not previously paid, the amounts payable to the
Securities Administrator and the Trustee pursuant to Sections 3.11(b) 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, Securities
Administrator Fees and the WMMSC Master Servicing Fee (if applicable) for such
Mortgage Loans and expenses and indemnities reimbursable pursuant to this
Agreement, in each case to the extent not previously retained by or distributed
to a Servicer, the Securities Administrator, a Master Servicer or the Trustee)
for each Loan Group, and shall apply such funds, first, to distributions in
respect of the Uncertificated Pooling REMIC Interests as specified in this
Section 5.02(a) and to the Class 1-A-LR Certificate, and then to distributions
on the Certificates (other than the Class 1-A-LR Certificate). Distributions
shall be made on the Certificates in the following order of priority and to the
extent of such funds, paying priorities (i) and (ii) to each Group from the
applicable Pool Distribution Amount and priorities (iii) and (iv) from the
remaining combined Pool Distribution Amounts, in the following order of priority
and to the extent of such funds:
(i) to each Class of Senior Certificates of such Group, an amount
allocable to interest equal to the Interest Distribution Amount for such
Class and any shortfall being allocated among such Classes in proportion
to the amount of the Interest Distribution Amount that would have been
distributed in the absence of such shortfall;
(ii) to each Class of Senior Certificates of a Group, in an
aggregate amount up to the Senior Principal Distribution Amount for such
Group, such distribution to be allocated among such Classes in accordance
with Section 5.02(b);
(iii) 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
until the Class Certificate Balance thereof has been reduced to
zero;
(C) to the Class B-2 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(D) to the Class B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
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
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
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
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
until the Class Certificate Balance thereof has been reduced to
zero; and
(iv) to the Holder of the Class 1-A-R Certificate, any amounts
remaining in the Upper-Tier Certificate Sub-Account and to the Holder of
the Class 1-A-LR Certificate, any remaining Pool Distribution Amounts.
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.
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 for the applicable Loan Group.
Distributions on the Uncertificated Group REMIC Interests. On each
Distribution Date, each Uncertificated Group REMIC Interest shall receive
distributions in respect of principal and interest in an amount equal to the
amount of principal and interest on the related Mortgage Loans, as provided
herein. With respect to any Distribution Date, Realized Losses and Recoveries
attributable to previously allocated Realized Losses will be allocated to each
Uncertificated Group REMIC Interest to the extent that such Realized Losses and
Recoveries are attributable to a related Mortgage Loan.
As of any date, the principal balance of each Uncertificated Group
REMIC Interest equals the aggregate principal balance of the related Mortgage
Loans. The pass-through rate with respect to each Uncertificated Group REMIC
Interest shall equal the Net WAC of the related Mortgage Loans.
Distributions on the Uncertificated Pooling REMIC Interests. On each
Distribution Date, interest shall be distributed in respect of each
Uncertificated Pooling REMIC Interest at the pass-through rate thereon, as
described in the final paragraph of this Section 5.02(a). On each Distribution
Date, distributions of principal with respect to the Uncertificated Pooling
REMIC Interests shall be made first, to the Class 1-LS Interest, Class 2-LS
Interest, Class 3-LS Interest, Class 4-LS Interest and Class 5-LS Interest, so
as to keep their principal balances equal to 0.1% of the Group Subordinate
Amount for Loan Group 1, Loan Group 2, Loan Group 3, Loan Group 4 and Loan Group
5, respectively (except that if any such excess is a larger number than in the
preceding distribution period, the least amount of principal shall be
distributed to the Class 1-LS Interest, Class 2-LS Interest, Class 3-LS
Interest, Class 4-LS Interest and Class 5-LS Interest such that the Subordinate
Balance Ratio is maintained); and second, any remaining principal to the Class
1-L Interest, Class 2-L Interest, Class 3-L Interest, Class 4-L Interest and
Class 5-L Interest. Any distributions made to the Uncertificated Pooling REMIC
Interests pursuant to this paragraph shall be made (a) from Loan Group 1
Principal Distribution Amounts to Uncertificated Pooling REMIC Interests
beginning with the numeral "1," (b) from Loan Group 2 Principal Distribution
Amounts to Uncertificated Pooling REMIC Interests beginning with the numeral
"2," (c) from Loan Group 3 Principal Distribution Amounts to Uncertificated
Pooling REMIC Interests beginning with the numeral "3," (d) from Loan Group 4
Principal Distribution Amounts to Uncertificated Pooling REMIC Interests
beginning with the numeral "4" and (d) from Loan Group 5 Principal Distribution
Amounts to Uncertificated Pooling REMIC Interests beginning with the numeral
"5."
Realized Losses shall be applied after all distributions have been
made on each Distribution Date first, to the Class 1-LS Interest, the Class 2-LS
Interest, the Class 3-LS Interest, the Class 4-LS Interest and the Class 5-LS
Interest, so as to keep their principal balances equal to 0.1% of the Group
Subordinate Amount for Loan Group 1, Loan Group 2, Loan Group 3, Loan Group 4
and Loan Group 5, respectively (except that if any such excess is a larger
number than in the preceding distribution period, the least amount of Realized
Losses shall be allocated to the Class 1-LS Interest, Class 2-LS Interest, Class
3-LS Interest, Class 4-LS Interest and Class 5-LS Interest such that the
Subordinate Balance Ratio is maintained); and second, the remaining Realized
Losses shall be allocated to the Class 1-L Interest, the Class 2-L Interest, the
Class 3-L Interest, Class 4-L Interest and the Class 5-L Interest. Any Realized
Losses allocated to the Uncertificated Pooling REMIC Interests pursuant to this
paragraph shall be (a) from Realized Losses allocated to Loan Group 1 in the
case of Uncertificated Pooling REMIC Interests beginning with the numeral "1,"
(b) from Realized Losses allocated to Loan Group 2 in the case of Uncertificated
Pooling REMIC Interests beginning with the numeral "2," (c) from Realized Losses
allocated to Loan Group 3 in the case of Uncertificated Pooling REMIC Interests
beginning with the numeral "3," (d) from Realized Losses allocated to Loan Group
4 in the case of Uncertificated Pooling REMIC Interests beginning with the
numeral "4" and (e) from Realized Losses allocated to Loan Group 5 in the case
of Uncertificated Pooling REMIC Interests beginning with the numeral "5."
Recoveries and Reimbursement Amounts shall be applied to the
Uncertificated Pooling REMIC Interests in a manner analogous to the application
of Realized Losses to the Uncertificated Pooling REMIC Interests.
As of any date, the aggregate principal balance of the Class 1-L
Interest and the Class 1-LS Interest shall equal the aggregate Stated Principal
Balance of Loan Group 1 minus the Class Certificate Balance of the Class 1-A-LR
Certificate (the "Adjusted Loan Group Balance"). As of any date, the aggregate
principal balance of the Class 2-L Interest and the Class 2-LS Interest shall
equal the aggregate Stated Principal Balance of Loan Group 2. As of any date,
the aggregate principal balance of the Class 3-L Interest and the Class 3-LS
Interest shall equal the aggregate Stated Principal Balance of Loan Group 3. As
of any date, the aggregate principal balance of the Class 4-L Interest and the
Class 4-LS Interest shall equal the aggregate Stated Principal Balance of Loan
Group 4. As of any date, the aggregate principal balance of the Class 5-L
Interest and the Class 5-LS Interest shall equal the aggregate Stated Principal
Balance of Loan Group 5.
The pass-through rate with respect to the Class 1-L Interest and the
Class 1-LS Interest shall be the Net WAC for Group 1 Mortgage Loans. The
pass-through rate with respect to the Class 2-L Interest and the Class 2-LS
Interest shall be the Net WAC for Group 2 Mortgage Loans. The pass-through rate
with respect to the Class 3-L Interest and the Class 3-LS Interest shall be the
Net WAC for Group 3 Mortgage Loans. The pass-through rate with respect to the
Class 4-L Interest and the Class 4-LS Interest shall be the Net WAC for Group 4
Mortgage Loans. The pass through rate with respect to the Class 5-L Interest and
the Class 5-LS Interest shall be the Net WAC for Group 5 Mortgage Loans.
Any Non-Supported Interest Shortfalls and Relief Act Reductions will
be allocated to each Uncertificated Pooling REMIC Interest in the same relative
proportions as interest is allocated to such Uncertificated Pooling REMIC
Interest. Amounts distributed to the Uncertificated Pooling REMIC Interests in
respect of principal and interest with respect to any Distribution Date are
referred to herein collectively as the "Pooling REMIC Distribution Amount."
(b) (i) On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 1 Senior Certificates
pursuant to Section 5.02(a)(ii) for such Distribution Date, will be distributed,
sequentially, as follows:
first, concurrently, to the Class 1-A-R and Class 1-A-LR
Certificates, pro rata, until their Class Certificate Balances have been reduced
to zero; and
second, to the Class 1-A-1 Certificates, until their Class
Certificate Balance has been reduced to zero.
(ii) On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 2 Senior Certificates
pursuant to Section 5.02(a)(ii) for such Distribution Date, will be distributed
to the Class 2-A-1 Certificates, until their Class Certificate Balance has been
reduced to zero; and
(iii) On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 3 Senior Certificates
pursuant to Section 5.02(a)(ii) for such Distribution Date, will be distributed
to the Class 3-A-1 Certificates, until their Class Certificate Balance has been
reduced to zero.
(iv) On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 4 Senior Certificates
pursuant to Section 5.02(a)(ii) for such Distribution Date, will be distributed
to the Class 4-A-1 Certificates, until their Class Certificate Balance has been
reduced to zero.
(iv) On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 5 Senior Certificates
pursuant to Section 5.02(a)(ii) for such Distribution Date, will be distributed
concurrently, to the Class 5-A-1 and Class 5-A-2 Certificates, pro rata, until
their Class Certificate Balances have been reduced to zero.
On each Distribution Date on or after the Senior Credit Support
Depletion Date for a Group, notwithstanding the allocation and priority set
forth above, the portion of the Pool Distribution Amount with respect to a Loan
Group available to be distributed as principal of the Senior Certificates of the
Related Group shall be distributed concurrently, as principal, on such Classes,
pro rata, on the basis of their respective Class Certificate Balances, until the
Class Certificate Balances thereof are reduced to zero.
Notwithstanding the foregoing, on each Distribution Date prior to
the Senior Credit Support Depletion Date but on or after the date on which the
aggregate Class Certificate Balance of the Class A Certificates of a Group have
been reduced to zero, amounts otherwise distributable from the Unscheduled
Principal Amounts on the Subordinate Certificates will be paid as principal to
the remaining classes of Class A Certificates in accordance with the priorities
set forth for the applicable Group in (i), (ii), (iii), (iv) or (v) above,
provided that on such Distribution Date (a) the Aggregate Subordinate Percentage
for such Distribution Date is less than twice the initial Aggregate Subordinate
Percentage or (b) the outstanding principal balance of all Mortgage Loans
(including, for this purpose, any Mortgage Loans in foreclosure or any REO
Property and any Mortgage Loan for which the mortgagor has filed for bankruptcy)
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 greater than or equal to 50%. If the Class A Certificates of
two or more Groups remain outstanding, the distributions described above will be
made to the Class A Certificates of such Groups, pro rata, in proportion to the
aggregate Class Certificate Balance of the Class A Certificates of each such
Group. In addition, if on any Distribution Date the aggregate Class Certificate
Balance of the Class A Certificates of a Group is greater than the Adjusted Pool
Amount of the related Loan Group (any such Group, the "Undercollateralized
Group" and any such excess, the "Undercollateralized Amount"), all amounts
otherwise distributable as principal on the Subordinate Certificates pursuant to
5.02(a)(iii)(L), (J), (H), (F), (D) and (B), in that order, will be paid as
principal to the Class A Certificates of the Undercollateralized Group in
accordance with the priorities set forth for the applicable Group above under
(i), (ii), (iii), (iv) or (v) until the aggregate Class Certificate Balance of
the Class A Certificates of the Undercollateralized Group equals the Adjusted
Pool Amount of the related Loan Group. Also, the amount of any Class Unpaid
Interest Shortfalls with respect to the Undercollateralized Group (including any
Class Unpaid Interest Shortfalls for such Distribution Date) will be paid to the
Undercollateralized Group prior to the payment of any Undercollateralized Amount
from amounts otherwise distributable as principal on the Subordinate
Certificates pursuant to Section 5.02(a)(iii)(L), (J), (H), (F), (D) and (B), in
that order: such amount will be paid to such Undercollateralized Group in
accordance with the priorities set forth in Section 5.02(a)(i) and (ii) up to
their Interest Distribution Amounts for such Distribution Date. If two or more
Groups are Undercollateralized Groups, the distributions described above will be
made, pro rata, in proportion to the amount by which the aggregate Class
Certificate Balance of the Class A Certificates of each such Group exceeds the
Adjusted Pool Amount of the related Loan Group.
(c) On each Distribution Date, Accrued Certificate Interest for each
Class of Certificates for such Distribution Date shall be reduced by such Class'
pro rata share, based on such Class' Interest Distribution Amount for such
Distribution Date, without taking into account the allocation made by this
Section 5.02(c), of (A) Non-Supported Interest Shortfalls, (B) on and after the
Senior Credit Support Depletion Date, any other Realized Loss on the Mortgage
Loans in the Related Loan Group allocable to interest and (C) Relief Act
Reductions incurred on the Mortgage Loans during the Prior Period.
(d) Notwithstanding the priority and allocation contained in Section
5.02(a)(iii), if with respect to any Class of Subordinate Certificates on any
Distribution Date, (i) the aggregate of the Class Certificate Balances
immediately prior to such Distribution Date of all Classes of Subordinate
Certificates which have a higher numerical Class designation than such Class,
divided by (ii) the aggregate Pool Principal Balance for all Loan Groups of all
the Certificates immediately prior to such Distribution Date (the "Fractional
Interest") is less than the Original Fractional Interest for such Class, no
distribution of principal in respect of clause (ii) of the Subordinate Principal
Distribution Amounts will be made to any Classes junior to such Class (the
"Restricted Classes"), the Class Certificate Balances of the Restricted Classes
will not be used in determining the Pro Rata Share for the Subordinate
Certificates that are not Restricted Classes; provided, however, if the
aggregate Class Certificate Balance of the Subordinate Certificates that are not
Restricted Classes is reduced to zero, then notwithstanding the above, any funds
remaining will be distributed sequentially to the Restricted Classes in order of
their respective numerical Class designations (beginning with the Class of
Restricted Certificates then outstanding with the lowest numerical Class
designation).
(e) For purposes of determining the Pool Distribution Amount for
each Loan Group to be distributed on each Distribution Date pursuant to Section
5.02(a), the Securities Administrator shall compute such Pool Distribution
Amount by adding (i) the amount as specified in written notice received by the
Securities Administrator from the WF Master Servicer no later than the Business
Day following the related Determination Date, which amount will constitute
clause (A) of the definition of Pool Distribution Amount and (ii) the amount as
specified in written notice received by the Securities Administrator from the
WMMSC Master Servicer no later than the Business Day following the related
Determination Date, which amount will constitute clause (B) of the definition of
Pool Distribution Amount.
Section 5.03 Allocation of Losses.
(a) No later than five (5) Business Days prior to the related
Distribution Date, each Master Servicer shall inform the Securities
Administrator in writing with respect to each WF Master Serviced Loan, in the
case of the WF Master Servicer, and with respect to each WMMSC Master Serviced
Loan, in the case of the WMMSC Master Servicer: (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 WF Master Serviced Loans or
WMMSC Master Serviced Loans, as applicable, in each Loan Group. Based on such
information, the Securities Administrator shall determine the total amount of
Realized Losses on the Mortgage Loans in each Loan Group with respect to the
related Distribution Date. Realized Losses shall be allocated to the
Certificates by a reduction in the Class Certificate Balances of the designated
Classes pursuant to the operation of Section 5.03(b).
(b) The Class Certificate Balance of the Class of 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 (after giving effect to the amount to be
distributed as a distribution of principal on such Distribution Date) equals the
sum of the Adjusted Pool Amounts for such Distribution Date.
After the Senior Credit Support Depletion Date, the Class
Certificate Balances of the Class A Certificates of the Related Group in the
aggregate 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 Class A Certificates of such Group (after giving
effect to the amount to be distributed as a distribution of principal) equals
the Adjusted Pool Amount for such Loan Group and Distribution Date.
Any such reduction or increase shall be allocated among the Class A
Certificates of such Group based on the Class Certificate Balances immediately
prior to such Distribution Date.
(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 Certificates with respect to a Distribution Date (the "Calculated
Principal Distribution") shall be made prior to the allocation of any Realized
Losses for such Distribution Date; provided, however, the actual payment of
principal to the Classes of Certificates shall be made subsequent to the
allocation of Realized Losses for such Distribution Date. In the event that
after the allocation of Realized Losses for a Distribution Date, the Calculated
Principal Distribution for a Class of Subordinate Certificates is greater than
the Class Certificate Balance of such Class, the excess shall be distributed
first, sequentially, to the Classes of Subordinate Certificates then outstanding
(beginning with the Class of Subordinate Certificates 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 Class A Certificates of such
Group, pro rata, on the basis of their respective Class Certificate Balances,
until the Class Certificate Balances thereof are reduced to zero.
(e) After the Senior Credit Support Depletion Date, on any
Distribution Date on which the Class 5-A-2 Loss Allocation Amount is greater
than zero, the Class Certificate Balance of the Class 5-A-2 Certificates will be
reduced by the Class 5-A-2 Loss Allocation Amount and, notwithstanding Section
5.03(b), the Class Certificate Balance of the Class 5-A-1 Certificates will not
be reduced by the Class 5-A-2 Loss Allocation Amount.
Any increase in the Class Certificate Balance allocated to the Class
5-A-1 Certificates pursuant to Section 5.03(b) will instead increase the Class
Certificate Balance of the Class 5-A-2 Certificates.
(f) 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.
(g) With respect to any Distribution Date, Realized Losses allocated
pursuant to this Section 5.03 will be allocated to each Uncertificated Pooling
REMIC Interest as described in Section 5.02(a).
Section 5.04 Statements to Certificateholders.
(a) Prior to the Distribution Date in each month, based upon the
information provided to the Securities Administrator on the Master Servicer's
Certificates delivered to the Securities Administrator pursuant to Section 4.01,
the Securities Administrator shall determine the following information with
respect to such Distribution Date:
(i) for each Loan Group, the amount allocable to principal,
separately identifying the aggregate amount of any Payoffs, Curtailments,
Principal Prepayments and Liquidation Proceeds included therein;
(ii) for each Loan Group, the amount allocable to interest, any
Class Unpaid Interest Shortfall included in such distribution and any
remaining Class Unpaid Interest Shortfall after giving effect to such
distribution;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the amount
of the shortfall and the allocation thereof as between principal and
interest;
(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on such Distribution
Date;
(v) for each Loan Group, the Pool Stated Principal Balance for the
following Distribution Date;
(vi) for each Loan Group, (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;
(vii) the amount of the Servicing Fee paid to or retained by each
Servicer with respect to each Loan Group and such Distribution Date;
(viii) the amount of the WMMSC Master Servicing Fee paid to the
WMMSC Master Servicer with respect to each Loan Group and such
Distribution Date;
(ix) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(x) for each Loan Group, the amount of Periodic Advances included in
the distribution on such Distribution Date and the aggregate amount of
Periodic Advances outstanding as of the close of business on such
Distribution Date;
(xi) for each Loan Group, the number and aggregate principal amounts
of Mortgage Loans (A) delinquent (exclusive of Mortgage Loans in
foreclosure or bankruptcy) (1) 1 to 30 days (2) 31 to 60 days (3) 61 to 90
days and (4) 91 or more days, (B) in foreclosure, as of the close of
business on the last day of the calendar month preceding such Distribution
Date and (C) in bankruptcy, as of the close of business on the last day of
the calendar month preceding such Distribution Date;
(xii) for each Loan Group, with respect to any Mortgage Loan that
became an REO Property during the preceding calendar month, the loan
number and Stated Principal Balance of such Mortgage Loan as of the close
of business on the Determination Date preceding such Distribution Date and
the date of acquisition thereof;
(xiii) for each Loan Group, the total number and principal balance
of any REO Properties (and market value, if available) as of the close of
business on the Determination Date preceding such Distribution Date;
(xiv) for each Loan Group, the aggregate amount of Realized Losses
incurred during the preceding calendar month;
(xv) for each Loan Group, the amount of WF Master Serviced Loan
Reimbursement Amounts and WMMSC Master Serviced Loan Reimbursement
Amounts; and
(xvi) for each Loan Group, the amount of Recoveries.
(b) No later than each Distribution Date, the Securities
Administrator, based upon information supplied to it on the Master Servicer's
Certificates, shall make available to each Holder of a Certificate, each Rating
Agency and the Master Servicers a statement setting forth the information set
forth in Section 5.04(a).
In the case of information furnished pursuant to clauses (i) and
(ii) of Section 5.04(a), the amounts shall be expressed as a dollar amount per
Certificate with a $1,000 denomination.
On each Distribution Date, the Securities Administrator shall
prepare and furnish to each Financial Market Service, in electronic or such
other format and media mutually agreed upon by the Securities Administrator, the
Financial Market Service and the Depositor, the information contained in the
statement described in Section 5.04(a) for such Distribution Date.
The Securities Administrator will make the monthly statement to
Certificateholders (and, at its option, any additional files containing the same
information in an alternative format) available each month to
Certificateholders, and other parties to this Agreement via the Securities
Administrator's Internet website. The Securities Administrator's Internet
website shall initially be located at "xxx.xxxxxxx.xxx." Assistance in using the
website can be obtained by calling the Securities Administrator's customer
service desk at (000) 000-0000. Parties that are unable to use the website are
entitled to have a paper copy mailed to them via first class mail by calling the
customer service desk and indicating such. The Securities Administrator shall
have the right to change the way the monthly statements to Certificateholders
are distributed in order to make such distribution more convenient and/or more
accessible to the above parties and the Securities Administrator shall provide
timely and adequate notification to all above parties regarding any such
changes.
Within a reasonable period of time after the end of each calendar
year, the Securities Administrator shall furnish to each Person who at any time
during the calendar year was the Holder of a Certificate, if requested in
writing by such Person, a statement containing the information set forth in
clauses (i) and (ii) of Section 5.04(a), in each case aggregated for such
calendar year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Securities Administrator shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Securities Administrator pursuant to any
requirements of the Code as from time to time in force.
The Securities Administrator shall deliver to the Holders of
Certificates any reports or information the Securities Administrator is required
by this Agreement or the Code, Treasury Regulations or REMIC Provisions to
deliver to the Holders of Certificates, and the Securities Administrator shall
prepare and provide to the Certificateholders (by mail, telephone, or
publication as may be permitted by applicable Treasury Regulations) such other
reasonable information as the Securities Administrator deems necessary or
appropriate or is required by the Code, Treasury Regulations, and the REMIC
Provisions including, but not limited to, (i) information to be reported to the
Holders of the Residual Certificates for quarterly notices on Schedule Q (Form
1066) (which information shall be forwarded to the Holders of the Residual
Certificates by the Securities Administrator), (ii) information to be provided
to the Holders of Certificates with respect to amounts which should be included
as interest and original issue discount in such Holders' gross income and (iii)
information to be provided to all Holders of Certificates setting forth the
percentage of each REMIC's assets, determined in accordance with Treasury
Regulations using a convention, not inconsistent with Treasury Regulations,
selected by the Securities Administrator in its absolute discretion, that
constitute real estate assets under Section 856 of the Code, and assets
described in Section 7701(a)(19)(C) of the Code; provided, however, that in
setting forth the percentage of such assets of each REMIC, nothing contained in
this Agreement, including without limitation Section 7.03 hereof, shall be
interpreted to require the Securities Administrator periodically to appraise the
fair market values of the assets of the Trust Estate or to indemnify the Trust
Estate or any Certificateholders from any adverse federal, state or local tax
consequences associated with a change subsequently required to be made in the
Depositor's initial good faith determinations of such fair market values (if
subsequent determinations are required pursuant to the REMIC Provisions) made
from time to time.
Section 5.05 Tax Returns and Reports to Certificateholders.
(a) For federal income tax purposes, each REMIC shall have a
calendar year taxable year and shall maintain its books on the accrual method of
accounting.
(b) The Securities Administrator shall prepare or cause to be
prepared, shall cause to be timely signed by the Trustee, and shall file or
cause to be filed with the Internal Revenue Service and applicable state or
local tax authorities income tax information returns for each taxable year with
respect to each REMIC containing such information at the times and in the manner
as may be required by the Code, the Treasury Regulations or state or local tax
laws, regulations, or rules, and shall furnish or cause to be furnished to each
REMIC and the Certificateholders the schedules, statements or information at
such times and in such manner as may be required thereby. Within 30 days of the
Closing Date, the Securities Administrator shall obtain for each REMIC 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 each REMIC for its
short taxable year ending December 31, 2004, REMIC status shall be elected for
such taxable year and all succeeding taxable years.
(d) The Securities Administrator will maintain or cause to be
maintained such records relating to each REMIC, including but not limited to
records relating to the income, expenses, assets and liabilities of the Trust
Estate, and the initial fair market value and adjusted basis of the Trust Estate
property and assets determined at such intervals as may be required by the Code
or the Treasury Regulations, as may be necessary to prepare the foregoing
returns, schedules, statements or information.
Section 5.06 Tax Matters Person. The Tax Matters Person shall have
the same duties with respect to the applicable REMIC as those of a "tax matters
partner" under Subchapter C of Chapter 63 of Subtitle F of the Code. The Holder
of the Class 1-A-R Certificate is hereby designated as the Tax Matters Person
for the Upper-Tier REMIC. The Holder of the Class 1-A-LR Certificate is hereby
designated as the Tax Matters Person for each Lower-Tier REMIC. By their
acceptance of the Class 1-A-R or Class 1-A-LR Certificate, as applicable, each
such Holder irrevocably appoints the Securities Administrator as its agent to
perform all of the duties of the Tax Matters Person for the Upper-Tier REMIC and
the Lower-Tier REMICs.
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 any REMIC
created hereunder shall exist, the Trustee, the Securities Administrator, the
Depositor and each Master Servicer shall act in accordance herewith to assure
continuing treatment of each REMIC created hereunder as a REMIC and avoid the
imposition of tax on each REMIC created hereunder. In particular:
(a) Neither the Securities Administrator nor the Trustee shall
create, or permit the creation of, any "interests" in any REMIC within the
meaning of Code Section 860D(a)(2) other than the interests represented by the
Regular Certificates, the Residual Certificates, the Uncertificated Group REMIC
Interests and the Uncertificated Pooling REMIC Interests.
(b) Except as otherwise provided in the Code, (i) the Depositor and
each Master Servicer shall not contribute to the Trust Estate and the Trustee
shall not accept property unless substantially all of the property held in each
REMIC constitutes either "qualified mortgages" or "permitted investments" as
defined in Code Sections 860G(a)(3) and (5), respectively, and (ii) no property
shall be contributed to any REMIC after the start-up day unless such
contribution would not subject the Trust Estate to the 100% tax on contributions
to a REMIC after the start-up day of such REMIC imposed by Code Section 860G(d).
(c) The Securities Administrator, on behalf of the Trustee, shall
not accept on behalf of any REMIC any fee or other compensation for services and
none of the Securities Administrator, the Trustee or the Master Servicers 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, 2.09, 3.01 or
3.15(g)), unless such sale is pursuant to a "qualified liquidation" of the
applicable REMIC as defined in Code Section 860F(a)(4)(A) and in accordance with
Article X.
(e) The Securities Administrator shall maintain books with respect
to the Trust and each REMIC on a calendar year taxable year and on an accrual
basis.
None of the Master Servicers, 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 Servicers
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 Servicers shall have delivered to the Securities Administrator an
Opinion of Counsel to the effect that such transaction will not result in the
imposition of a tax on any REMIC created hereunder and will not disqualify any
such REMIC from treatment as a REMIC; and, provided further, that the Master
Servicers 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-0, X-0-X-X, X-0-X-XX, X-0-X-0, X-0-X-0, A-4-A-1, A-5-A-1,
X-0-X-0, 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 and integral multiples in
excess thereof set forth in the Preliminary Statement. The Senior Certificates
(other than the Class 1-A-R and Class 1-A-LR Certificates) and the Class B-1,
Class B-2 and Class B-3 Certificates shall initially be issued in book-entry
form through the Depository and delivered to the Depository or, pursuant to the
Depository's instructions on behalf of the Depository to, and deposited with,
the Certificate Custodian, and all other Classes of Certificates shall initially
be issued in definitive, fully-registered form.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Securities Administrator by an authorized officer or signatory.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures were affixed, authorized to sign on behalf of
the Securities Administrator shall bind the Securities Administrator,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the execution and delivery of such Certificates or did not
hold such offices or positions at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless such Certificate shall have been manually authenticated by the
Securities Administrator substantially in the form provided for herein, and such
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
Section 6.02 Registration of Transfer and Exchange of Certificates.
(a) The Securities Administrator shall cause to be kept at an office
or agency in the city in which the Corporate Trust Office of the Securities
Administrator is located a Certificate Register in which, subject to such
reasonable regulations as it may prescribe, the Securities Administrator shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Securities Administrator shall initially
serve as Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided.
(b) At the option of the Certificateholders, Certificates may be
exchanged for other Certificates of authorized denominations of a like Class,
tenor and aggregate Percentage Interest, upon surrender of the Certificates to
be exchanged at any such office or agency. Whenever any Certificates are so
surrendered for exchange, the Securities Administrator shall execute and the
Securities Administrator shall authenticate and deliver the Certificates which
the Certificateholder making the exchange is entitled to receive. Every
Certificate presented or surrendered for transfer or exchange shall (if so
required by the Securities Administrator or the Certificate Registrar) be duly
endorsed by, or be accompanied by a written instrument of transfer in form
satisfactory to the Securities Administrator and the Certificate Registrar duly
executed by, the Holder thereof or its attorney duly authorized in writing.
(c) (i) Except as provided in paragraph (c)(iii) below, the
Book-Entry Certificates shall at all times remain registered in the name of the
Depository or its nominee and at all times: (A) registration of the 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 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 Servicers, the Depositor, the
Securities Administrator or the Trustee shall be liable for any delay in
delivery of such instruction and may conclusively rely on, and shall be
protected in relying on, such instructions. The Depositor shall provide
the Securities Administrator with an adequate inventory of certificates to
facilitate the issuance and transfer of Definitive Certificates. Upon the
issuance of Definitive Certificates, the Securities Administrator shall
recognize the Holders of the Definitive Certificates as Certificateholders
hereunder.
(d) No transfer of a Private Certificate shall be made unless such
transfer is exempt from the registration requirements of the 1933 Act and any
applicable state securities laws or is made in accordance with the 1933 Act and
such laws. In the event of any such transfer, (i) unless such transfer is made
in reliance on Rule 144A under the 1933 Act, the Securities Administrator or the
Depositor may require a written Opinion of Counsel (which may be in-house
counsel) acceptable to and in form and substance reasonably satisfactory to the
Securities Administrator and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act and such laws or is being made pursuant to the 1933
Act and such laws, which Opinion of Counsel shall not be an expense of the
Securities Administrator or the Depositor and (ii) the Securities Administrator
shall require a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached hereto as Exhibit G-1 and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached hereto either as Exhibit G-2A or as Exhibit G-2B, which
certificates shall not be an expense of the Securities Administrator or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both. The Depositor shall provide to
any Holder of a Private Certificate and any prospective transferees designated
by any such Holder, information regarding the related Certificates and the
Mortgage Loans and such other information as shall be necessary to satisfy the
condition to eligibility set forth in Rule 144A(d)(4) for transfer of any such
certificate without registration thereof under the 1933 Act pursuant to the
registration exemption provided by Rule 144A. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Securities Administrator and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
(e) No transfer of an ERISA Restricted Certificate shall be made
unless the transferee delivers to the Securities Administrator either (i) a
representation letter in the form of Exhibit H from the transferee of such
Certificate, which representation letter shall not be an expense of the
Depositor, the Trustee, the Securities Administrator or the Master Servicers, or
(ii) in the case of any ERISA Restricted Certificate presented for registration
in the name of an employee benefit plan or arrangement, including an individual
retirement account, subject to ERISA, the Code, or any federal, state or local
law ("Similar Law") which is similar to ERISA or the Code (collectively, a
"Plan"), or a trustee or custodian of any of the foregoing, an Opinion of
Counsel in form and substance satisfactory to the Securities Administrator 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 Servicers 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 Servicers. 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 a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Securities Administrator of any change or impending change in
its status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Residual
Certificate unless such Ownership Interest is a pro rata undivided
interest.
(iii) In connection with any proposed transfer of any Ownership
Interest in a Residual Certificate, the Securities Administrator shall
require delivery to it, in form and substance satisfactory to it, of an
affidavit in the form of Exhibit I hereto from the proposed transferee.
(iv) Notwithstanding the delivery of an affidavit by a proposed
transferee under clause (iii) above, if a Responsible Officer of the
Securities Administrator has actual knowledge that the proposed transferee
is not a Permitted Transferee, no transfer of any Ownership Interest in a
Residual Certificate to such proposed transferee shall be effected.
(v) No Ownership Interest in a Residual Certificate may be purchased
by or transferred to any Person that is not a U.S. Person, unless (A) such
Person holds such Residual Certificate in connection with the conduct of a
trade or business within the United States and furnishes the transferor
and the Securities Administrator with an effective Internal Revenue
Service Form W-8ECI (or successor thereto) or (B) the transferee delivers
to both the transferor and the Securities Administrator an Opinion of
Counsel from a nationally-recognized tax counsel to the effect that such
transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of a Residual
Certificate will not be disregarded for federal income tax purposes.
(vi) Any attempted or purported transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
6.02 shall be absolutely null and void and shall vest no rights in the
purported transferee. If any purported transferee shall, in violation of
the provisions of this Section 6.02, become a Holder of a Residual
Certificate, then the prior Holder of such Residual Certificate that is a
Permitted Transferee shall, upon discovery that the registration of
transfer of such Residual Certificate was not in fact permitted by this
Section 6.02, be restored to all rights as Holder thereof retroactive to
the date of registration of transfer of such Residual Certificate. The
Securities Administrator shall be under no liability to any Person for any
registration of transfer of a Residual Certificate that is in fact not
permitted by this Section 6.02 or for making any distributions due on such
Residual Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of the Agreement so long as
the transfer was registered in accordance with this Section 6.02. The
Securities Administrator shall be entitled to recover from any Holder of a
Residual Certificate that was in fact not a Permitted Transferee at the
time such distributions were made all distributions made on such Residual
Certificate. Any such distributions so recovered by the Securities
Administrator shall be distributed and delivered by the Securities
Administrator to the prior Holder of such Residual Certificate that is a
Permitted Transferee.
(vii) If any Person other than a Permitted Transferee acquires any
Ownership Interest in a Residual Certificate in violation of the
restrictions in this Section 6.02, then the Securities Administrator,
based on information provided to the Securities Administrator by the
related Master Servicer, will provide to the Internal Revenue Service, and
to the Persons specified in Section 860E(e)(3) and (6) of the Code,
information needed to compute the tax imposed under Section 860E(e) of the
Code on transfers of residual interests to disqualified organizations. The
expenses of the Securities Administrator under this clause (vii) shall be
reimbursable by the Trust.
(viii) No Ownership Interest in a Residual Certificate shall be
acquired by a Plan or any Person acting on behalf of a Plan.
(g) [Reserved]
(h) No service charge shall be imposed for any transfer or exchange
of Certificates of any Class, but the Securities Administrator may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be
destroyed by the Certificate Registrar.
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Certificate Registrar or the
Certificate Registrar receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate, and (b) there is delivered to the Securities
Administrator, the Trustee, the Depositor and the Certificate Registrar such
security or indemnity reasonably satisfactory to each, to save each of them
harmless, then, in the absence of actual notice to the Securities Administrator
or the Certificate Registrar that such Certificate has been acquired by a bona
fide purchaser, the Securities Administrator shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor, Class and Percentage Interest but
bearing a number not contemporaneously outstanding. Upon the issuance of any new
Certificate under this Section, the Securities Administrator may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Securities Administrator and the Certificate Registrar)
connected therewith. Any duplicate Certificate issued pursuant to this Section
shall constitute complete and indefeasible evidence of ownership in the Trust,
as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 6.04 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Depositor, the Master Servicers,
the Trustee, the Securities Administrator, the Certificate Registrar and any
agent of the Depositor, the Master Servicers, 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 Servicers, the Trustee, the
Securities Administrator, the Certificate Registrar or any agent of the Master
Servicers, the Trustee, the Securities Administrator or the Certificate
Registrar shall be affected by notice to the contrary.
ARTICLE VII
THE DEPOSITOR AND THE MASTER SERVICERS
Section 7.01 Respective Liabilities of the Depositor and the Master
Servicers. The Depositor and each 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 each 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 either 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
Servicers. The Depositor and each 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 a Master Servicer may be
merged or consolidated, or any corporation resulting from any merger or
consolidation to which the Depositor or a Master Servicer shall be a party, or
any Person succeeding to the business of the Depositor or a Master Servicer,
shall be the successor of the Depositor or such Master Servicer, as the case may
be, hereunder, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person to
the WF Master Servicer shall be qualified to service mortgage loans on behalf of
FNMA or FHLMC.
Section 7.03 Limitation on Liability of the Depositor, the Master
Servicers and Others. None of the Depositor, either Master Servicer or any of
the directors, officers, employees or agents of the Depositor or of either
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, either
Master Servicer or any such Person against any breach of warranties or
representations made herein or any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties or by reason of reckless disregard of obligations and duties
hereunder. The Depositor, the Master Servicers and any director, officer,
employee or agent of the Depositor or the Master Servicers 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
Servicers and any director, officer, employee or agent of the Depositor or the
Master Servicers 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 either of the Master Servicers 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 either 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 Certificate Account as provided by Section 3.11, the WF Master Servicer
shall be entitled to be reimbursed therefor out of amounts attributable to the
WF Master Serviced Loans on deposit in the WF Master Servicer Custodial Account
and the WMMSC Master Servicer shall be entitled to be reimbursed therefor out of
amounts attributable to the WMMSC Master Serviced Loans on deposit in the WMMSC
Master Servicer Custodial Account.
Section 7.04 Depositor and Master Servicers Not to Resign. Subject
to the provisions of Section 7.02, neither the Depositor nor either Master
Servicer shall resign from its respective obligations and duties hereby imposed
on it except upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination permitting the
resignation of the Depositor or either Master Servicer shall be evidenced by an
Opinion of Counsel to such effect delivered to the Securities Administrator. No
such resignation by a Master Servicer shall become effective until the
Securities Administrator or a successor Master Servicer shall have assumed such
Master Servicer's responsibilities and obligations in accordance with Section
8.05 hereof.
Section 7.05 WMMSC Master Servicer's Covenant Not to Solicit. The
WMMSC Master Servicer covenants that neither the WMMSC Master Servicer nor any
affiliate of the WMMSC Master Servicer will take any action personally, by
telephone, by mail or otherwise, to solicit the prepayment of the WMMSC Master
Serviced Loans by the Mortgagors, in whole or in part. Nothing in this Section
7.05, however, shall prohibit the WMMSC Master Servicer or any affiliate from
(i) advertising its availability for handling refinancings of mortgage loans in
its servicing portfolio if the WMMSC Master Serviced Loans are not specifically
targeted; (ii) promoting terms available for refinancing by sending letters or
promotional material to the mortgagors of all the mortgage loans that it owns or
services; (iii) promoting terms available for refinancing by sending letters or
promotional material to the mortgagors of all the mortgage loans of a specific
type (e.g., conventional fixed-rate or conventional adjustable-rate) that it
owns or services; (iv) promoting terms available for refinancing by sending
letters or promotional material to the mortgagors of all the mortgage loans that
fall within specific interest rate ranges that it owns or services; (v)
providing payoff information or otherwise cooperating with individual Mortgagors
who contact it about prepaying any WMMSC Master Serviced Loan; or (vi) advising
individual Mortgagors who contact it about prepaying any WMMSC Master Serviced
Loan of refinancing terms or streamlined origination arrangements that are
available.
In no event, however, shall the WMMSC Master Servicer or any
affiliate treat mortgage loans that it holds in its own portfolio and the WMMSC
Master Serviced Loans as separate classes of mortgages for purposes of
advertising the availability of refinancing terms.
Section 7.06 Covenant to Disclose Servicing Deficiencies. The WMMSC
Master Servicer hereby covenants that, in connection with the preparation of the
statement required to be furnished to the Securities Administrator pursuant to
Section 3.20, it will disclose all significant deficiencies relating to the
WMMSC Master Servicer's compliance with the minimum standards set forth in this
Agreement to the independent public accountants hired to furnish such statement.
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 either Master Servicer to remit amounts to the
Securities Administrator for deposit into the Certificate Account in the amount
and manner provided herein so as to enable the Securities Administrator to
distribute to Holders of Certificates any payment required to be made under the
terms of such Certificates and this Agreement (other than payments required to
be made by the WMMSC Master Servicer under Section 3.21) which continues
unremedied by 3:00 P.M. New York time on the related Distribution Date; or
(b) failure on the part of a Master Servicer duly to observe or
perform in any material respect any other covenants or agreements of such 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 such Master Servicer by the Securities Administrator, the Trustee
or the Depositor, or to such 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 a Master
Servicer, or for the winding up or liquidation of a 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 a 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 a
Master Servicer or of or relating to substantially all of its property; or a
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) with respect to the WMMSC Master Servicer, the failure of the
WMMSC Master Servicer to remit any Advance required to be remitted by the WMMSC
Master Servicer pursuant to Section 3.21 which failure continues unremedied at
the opening of business on the related Distribution Date;
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 such 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
such Master Servicer (and to the Trustee, if given by the Depositor, and to the
Depositor, if given by the Trustee), terminate all of the rights and obligations
of such Master Servicer under this Agreement. If an Event of Default described
in clause (e) hereof shall occur and is actually known by the Trustee, the
Trustee shall, by notice to the WMMSC Master Servicer, terminate all of the
rights and obligations of the WMMSC Master Servicer under this Agreement and in
and to the applicable Mortgage Loans and proceeds thereof (but without prejudice
to any rights it may have as a Certificateholder or to reimbursement of any
Advance and other advances of its own funds properly made prior to termination)
and the Trustee or a successor Master Servicer appointed pursuant to Section
8.05 shall, on the related Distribution Date, make the Advance which the WMMSC
Master Servicer failed to make. On or after the receipt by such Master Servicer
of such written notice and subject to Section 8.05, all authority and power of
such 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
Servicers, 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. In addition, upon the
occurrence of an Event of Default, in the event the WMMSC Master Servicer is
acting as Servicer for the WMMSC Master Serviced Loans for which the WMMSC
Master Servicer has not entered into a Servicing Contract, the WMMSC Master
Servicer shall cease to act as Servicer with respect to such WMMSC Master
Serviced Loans and, subject to Section 8.05, all authority and power of the
WMMSC Master Servicer, whether with respect to such WMMSC Master Serviced Loans
or otherwise, shall pass to and be vested in the Trustee pursuant to and under
this Section 8.01, unless and until such time as the Trustee shall appoint a
successor for the WMMSC Master Servicer pursuant to Section 8.05. Any such
action taken by the Trustee must be prior to the distribution on the relevant
Distribution Date. If the WMMSC Master Servicer shall within two Business Days
following such suspension remit to the Securities Administrator the amount of
any Advance the nonpayment of which by the WMMSC Master Servicer was an Event of
Default described in clause (e) of this Section 8.01 and no other Event of
Default is then continuing with respect to the WMMSC Master Servicer, the
Trustee, subject to the last sentence of this paragraph, may permit the WMMSC
Master Servicer to resume its rights and obligations as a Master Servicer
hereunder. The WMMSC Master Servicer agrees that it will reimburse the Trustee
for actual, necessary and reasonable costs incurred by the Trustee because of
action taken pursuant to this Section 8.01 as a result of an Event of Default
under Section 8.01(e). The WMMSC Master Servicer agrees that if an Event of
Default as described in clause (e) of this Section 8.01 shall occur more than
two times in any twelve month period, the WMMSC Master Servicer may not be
permitted to resume the exercise of its rights and the performance of its
obligations as a Master Servicer hereunder. Each Master Servicer agrees to
cooperate with the Trustee in effecting the termination of the responsibilities
and rights of the WF 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 WF Master Servicer in the WF Master Servicer
Custodial Account or thereafter received by the WF Master Servicer with respect
to the WF Master Serviced Loans. The WMMSC Master Servicer agrees to cooperate
with the Trustee in effecting the termination of the responsibilities and rights
of the WMMSC Master Servicer hereunder, including, without limitation, the
transfer to the Securities Administrator for the administration by it of all
cash amounts that have been deposited by the WMMSC Master Servicer in the WMMSC
Master Servicer Custodial Account and in any Servicer Custodial Account
maintained by the WMMSC Master Servicer and WMMSC Escrow Account with respect to
the WMMSC Master Serviced 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 a Master Servicer pursuant
hereto, such Master Servicer shall remain liable for any causes of action
arising out of any Event of Default occurring prior to such termination, subject
to the terms and conditions of this Agreement.
Section 8.02 Remedies of Trustee. During the continuance of any
Event of Default, so long as such Event of Default shall not have been remedied,
the Trustee, in addition to the rights specified in Section 8.01, shall have the
right, in its own name as trustee of an express trust, to take all actions now
or hereafter existing at law, in equity or by statute to enforce its rights and
remedies and to protect the interests, and enforce the rights and remedies, of
the Certificateholders (including the institution and prosecution of all
judicial, administrative and other proceedings and the filing of proofs of claim
and debt in connection therewith). Except as otherwise expressly provided in
this Agreement, no remedy provided for by this Agreement shall be exclusive of
any other remedy, and each and every remedy shall be cumulative and in addition
to any other remedy and no delay 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 a
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 a 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 a Master Servicer specified in
Section 8.01(a) or (b) which would become an Event of Default upon such Master
Servicer's failure to remedy the same after notice, the Trustee shall give
notice thereof to such 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.
Section 8.05 Trustee to Act; Appointment of Successor.
(a) Within 90 days of the time a 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 such Master Servicer in its capacity
as master servicer under this Agreement and, with respect to the WMMSC Master
Serviced Loans, under the Servicing Contracts, and the transactions set forth or
provided for herein and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on such 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 such 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 such 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).
(b) In connection with the appointment of a successor Master
Servicer or the assumption of the duties of a 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 a 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.
Section 8.06 Notification to Certificateholders. Upon any
termination or appointment of a successor to a Master Servicer pursuant to this
Article VIII, the Securities Administrator shall give prompt written notice
thereof to Certificateholders at their respective addresses appearing in the
Certificate Register and to each Rating Agency.
ARTICLE IX
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee and Securities Administrator.
(a) The Trustee and the Securities Administrator, prior to the
occurrence of an Event of Default and after the curing or waiver of all Events
of Default which may have occurred, each undertake to perform such duties and
only such duties as are specifically set forth in this Agreement as duties of
the Trustee and the Securities Administrator, respectively. In case an Event of
Default has occurred of which a Responsible Officer of the Trustee shall have
actual knowledge (which has not been cured or waived), the Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and use
the same degree of care and skill in their exercise as a reasonably prudent
investor would exercise or use under the circumstances in the conduct of such
investor's own affairs. In case an Event of Default has occurred of which a
Responsible Officer of the Securities Administrator shall have actual knowledge
(which has not been cured or waived), the Securities Administrator shall
exercise such of the rights and powers vested in it by this Agreement, and use
the same degree of care and skill in their exercise as a reasonably prudent
investor would exercise or use under the circumstances in the conduct of such
investor's own affairs.
The Trustee and the Securities Administrator, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee and the Securities Administrator
which are specifically required to be furnished pursuant to any provision of
this Agreement, shall examine them to determine whether they conform to the
requirements of this Agreement; provided, however, that neither the Trustee nor
the Securities Administrator shall be responsible for the accuracy of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Master Servicers 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 Servicers 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 a Master Servicer, the
Securities Administrator, the Depositor or any Certificateholder. The
Securities Administrator shall not be charged with knowledge of any
default specified in clauses (a) and (b) of Section 8.01 or an Event of
Default under clauses (c) and (d) of Section 8.01 unless a Responsible
Officer of the Securities Administrator assigned to and working in the
Corporate Trust Office of the Securities Administrator obtains actual
knowledge of such failure or event or any Responsible Officer of the
Securities Administrator receives written notice of such failure or event
at its Corporate Trust Office from a 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 either Master Servicer under
this Agreement.
Section 9.02 Certain Matters Affecting the Trustee and the
Securities Administrator.
Except as otherwise provided in Section 9.01:
(i) The Trustee and the Securities Administrator may request and
rely upon and shall be protected in acting or refraining from acting upon
any resolution, Officer's Certificate, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties and the manner of obtaining consents and of
evidencing the authorization of the execution thereof by
Certificateholders shall be subject to the reasonable regulations as the
Trustee and the Securities Administrator, as applicable, may prescribe;
(ii) The Trustee and the Securities Administrator may consult with
counsel and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such Opinion
of Counsel;
(iii) Neither the Trustee nor the Securities Administrator shall be
under any obligation to exercise any of the trusts or powers vested in it
by this Agreement or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any
of the Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee or the
Securities Administrator, as the case may be, reasonable security or
indemnity satisfactory to it against the costs, expenses and liabilities
which may be incurred therein or thereby; nothing contained herein shall,
however, relieve the Securities Administrator of the obligation, upon the
occurrence of an Event of Default (which has not been cured or waived), to
exercise such of the rights and powers vested in it by this Agreement, and
to use the same degree of care and skill in their exercise as a prudent
investor would exercise or use under the circumstances in the conduct of
such investor's own affairs;
(iv) Neither the Trustee nor the Securities Administrator shall be
personally liable for any action taken, suffered or omitted by it in good
faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default which may have
occurred, neither the Trustee nor the Securities Administrator shall be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing so to do by Holders of Certificates of any Class
evidencing, as to such Class, Percentage Interests, aggregating not less
than 50%; provided, however, that if the payment within a reasonable time
to the Trustee or the Securities Administrator of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee or the Securities
Administrator, as applicable, not reasonably assured to the Trustee or the
Securities Administrator, as applicable, by the security afforded to it by
the terms of this Agreement, the Trustee or the Securities Administrator,
as the case may be, may require reasonable indemnity or security
satisfactory to it against such expense or liability or payment of such
estimated expenses as a condition to so proceeding;
(vi) The Trustee and the Securities Administrator may each execute
any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, attorneys, accountants, custodian
or independent contractor; and
(vii) the right of the Trustee or the Securities Administrator to
perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and neither the Trustee nor the Securities
Administrator shall be answerable for other than its gross negligence or
willful misconduct in the performance of any such act.
Section 9.03 Neither Trustee nor Securities Administrator Liable for
Certificates or Mortgage Loans. The recitals contained herein and in the
Certificates (other than the execution of, and the authentication on the
Certificates) shall be taken as the statements of the Depositor or Master
Servicers, as applicable, and neither the Trustee nor the Securities
Administrator assumes responsibility for their correctness. Neither the Trustee
nor the Securities Administrator makes any representations as to the validity or
sufficiency of this Agreement or of the Certificates or any Mortgage Loans save
that the Trustee and the Securities Administrator represent that, assuming due
execution and delivery by the other parties hereto, this Agreement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms,
subject, as to enforcement of remedies, to applicable insolvency, receivership,
moratorium and other laws affecting the rights of creditors generally, and to
general principles of equity and the discretion of the court (regardless of
whether enforcement of such remedies is considered in a proceeding in equity or
at law). Neither the Trustee nor the Securities Administrator shall be
accountable for the use or application by the Depositor of funds paid to the
Depositor in consideration of the assignment of the Mortgage Loans hereunder by
the Depositor, or for the use or application of any funds paid to the WMMSC
Master Servicer in respect of the WMMSC Master Serviced Loans or deposited into
the WMMSC Master Servicer Custodial Account, or any other account hereunder
(other than the Certificate Account) maintained by the WMMSC Master Servicer.
Neither the Trustee nor the Securities Administrator shall at any
time have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Mortgage or any Mortgage Loan, or the
perfection and priority of any Mortgage or the maintenance of any such
perfection and priority or for or with respect to the sufficiency of the Trust
or its ability to generate the payments to be distributed to Certificateholders
under this Agreement, including, without limitation: the existence, condition
and ownership of any Mortgaged Property; the existence and enforceability of any
hazard insurance thereon (other than if the Trustee shall assume the duties of a
Master Servicer pursuant to Section 8.05 and thereupon only for the acts or
omissions of the Trustee as the successor to such 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 a Master Servicer pursuant to Section 8.05 and thereupon only for the
acts or omissions of the Trustee as successor to such Master Servicer); the
compliance by the Depositor or the Master Servicers 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 Servicers 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, either Master Servicer (other
than if the Trustee shall assume the duties of such Master Servicer pursuant to
Section 8.05 and thereupon only for the acts or omissions of the Trustee as
successor to such Master Servicer), or any Mortgagor; any action of a Master
Servicer (other than if the Trustee shall assume the duties of such Master
Servicer pursuant to Section 8.05 and thereupon only for the acts or omissions
of the Trustee as successor to such Master Servicer) taken in the name of the
Securities Administrator; the failure of either 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 a Master Servicer (other than if the
Trustee shall assume the duties of such Master Servicer pursuant to Section 8.05
and thereupon only for the acts or omissions of the Trustee as successor to such
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 Servicers or any
of its affiliates with the same right it would have if it were not the Trustee
or the Securities Administrator.
Section 9.05 Eligibility Requirements for Trustee and the Securities
Administrator. The Trustee and the Securities Administrator hereunder shall at
all times be (a) an institution the deposits of which are fully insured by the
FDIC and (b) a corporation or banking association organized and doing business
under the laws of the United States of America or of any State, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of not less than $50,000,000.00 and subject to supervision or
examination by Federal or State authority and (c) with respect to every
successor trustee or securities administrator hereunder either an institution
(i) the long-term unsecured debt obligations of which are rated at xxxxx "X0" by
Moody's and at least "A" and S&P or (ii) whose serving as Trustee or Securities
Administrator hereunder would not result in the lowering of the ratings
originally assigned to any Class of Certificates. The Trustee shall not be an
affiliate of the Depositor, either Master Servicer or any Servicer. If such
corporation or banking association publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 9.05, the 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, a 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 "P1" by Moody's and "A-1" by
S&P (or such other rating acceptable to Moody's and S&P 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 discharged from the trust hereby created by giving written notice
thereof to the Master Servicers 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 Servicers, 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
Servicers 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 Servicers and the
Trustee or the Securities Administrator, as applicable; the Master Servicers
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 Servicers and
to its predecessor Trustee or Securities Administrator, as applicable, an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee or Securities Administrator shall become
effective and such successor Trustee or Securities Administrator, as the case
may be, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Trustee or Securities
Administrator, as applicable, herein. The predecessor Trustee or Securities
Administrator shall duly assign, transfer, deliver and pay over to the successor
Trustee or Securities Administrator, as the case may be, the whole of the
Mortgage Files and related documents and statements held by it hereunder,
together with all instruments of transfer and assignment or other documents
properly executed as may be reasonably required to effect such transfer and such
of the records or copies thereof maintained by the predecessor Trustee or
Securities Administrator in the administration hereof as may be reasonably
requested by the successor Trustee or Securities Administrator, as the case may
be, and shall thereupon be discharged from all duties and responsibilities under
this Agreement; provided, however, that if the predecessor Trustee or Securities
Administrator has been removed pursuant to the third paragraph of Section 9.06,
all reasonable expenses of the predecessor Trustee or Securities Administrator
incurred in complying with this Section 9.07 shall be reimbursed by the Trust.
No successor Trustee or Securities Administrator shall accept
appointment as provided in this Section 9.07 unless at the time of such
appointment such successor Trustee or Securities Administrator, as the case may
be, shall be eligible under the provisions of Section 9.05.
Upon acceptance of appointment by a successor Trustee or Securities
Administrator, as applicable, as provided in this Section 9.07, the Master
Servicers 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 a 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 such Master
Servicer.
Section 9.08 Merger or Consolidation of Trustee or Securities
Administrator. Any corporation or banking association into which either the
Trustee or the Securities Administrator may be merged or converted or with which
it may be consolidated, or any corporation or banking association resulting from
any merger, conversion or consolidation to which the Trustee or the Securities
Administrator shall be a party, or any corporation or banking association
succeeding to all or substantially all of the corporate trust business of the
Trustee or the Securities Administrator, shall be the successor of the Trustee
or the Securities Administrator, as applicable, hereunder, if such corporation
or banking association is eligible under the provisions of Section 9.05, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
Section 9.09 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any of the provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any Mortgaged
Property may at the time be located or for any other reason, the Master
Servicers 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 one or
both of the Master Servicers 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 a Master Servicer hereunder), the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Estate or
any portion thereof in any such jurisdiction) shall be exercised and performed
by such separate trustee or co-trustee at the direction of the Trustee. No
trustee hereunder shall be held personally liable by reason of any act or
omission of any other trustee hereunder; provided, however, that no appointment
of a co-trustee or separate trustee hereunder shall relieve the Trustee of its
obligations hereunder.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article IX. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall become incapable of acting, resign or be removed, or shall be adjudged a
bankrupt or insolvent, or a receiver of its property shall be appointed, or any
public officer shall take charge or control of such trustee or co-trustee or of
its property or affairs for the purpose of rehabilitation, conservation or
liquidation, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
Section 9.10 Authenticating Agents. The Securities Administrator may
appoint one or more authenticating agents ("Authenticating Agents") which shall
be authorized to act on behalf of the Securities Administrator in authenticating
or countersigning Certificates. Initially, the Authenticating Agent shall be
Xxxxx Fargo Bank, N.A. Wherever reference is made in this Agreement to the
authentication or countersigning of Certificates by the Securities Administrator
or the Securities Administrator's certificate of authentication or
countersigning, such reference shall be deemed to include authentication or
countersigning on behalf of the Securities Administrator by an Authenticating
Agent and a certificate of authentication or countersignature executed on behalf
of the Securities Administrator by an Authenticating Agent. Each Authenticating
Agent must be acceptable to the Master Servicer and must be a corporation or
banking association organized and doing business under the laws of the United
States of America or of any State, having a place of business in New York, New
York, having a combined capital and surplus of at least $15,000,000, authorized
under such laws to do a trust business and subject to supervision or examination
by Federal or State authorities.
Any corporation or banking association into which any Authenticating
Agent may be merged or converted or with which it may be consolidated, or any
corporation or banking association resulting from any merger, conversion or
consolidation to which any Authenticating Agent shall be a party, or any
corporation or banking association succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Securities Administrator or the Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Securities Administrator and to the Master
Servicers. 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 Servicers. 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 Servicers and shall mail notice of such appointment to all
Certificateholders. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent.
Section 9.11 Securities Administrator's Fees and Expenses and
Trustee's Fees and Expenses. The Trustee, as compensation for its services
hereunder, shall be entitled to a fee in an amount agreed upon between the
Trustee and the Securities Administrator, payable by the Securities
Administrator out of its own funds and not out of any funds of the Trust Estate.
The Securities Administrator shall be entitled to the Securities Administrator
Fee as compensation for its services hereunder. The Trustee and the Securities
Administrator, as the case may be, and any director, officer, employee or agent
of the Trustee or the Securities Administrator, as the case may be, shall be
indemnified and held harmless by the Trust against any claims, damage, loss,
liability or expense (including reasonable attorney's fees) (a) incurred in
connection with 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
Servicers, 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 related Master Servicer. Subject
to this Article IX, the Trustee agrees to comply with the terms of each
Custodial Agreement and to enforce the terms and provisions thereof against the
Custodian for the benefit of the Certificateholders. Each Custodian shall be a
depository institution subject to supervision by federal or state authority,
shall have a combined capital and surplus of at least $10,000,000 and shall be
qualified to do business in the jurisdiction in which it holds any Mortgage
File.
Section 9.13 Paying Agents. The Securities Administrator may appoint
one or more Paying Agents (each, a "Paying Agent") which shall be authorized to
act on behalf of the Securities Administrator in making withdrawals from the
Certificate Account and distributions to Certificateholders as provided in
Section 3.09 and Section 5.02. Wherever reference is made in this Agreement to
the withdrawal from the Certificate Account by the Securities Administrator,
such reference shall be deemed to include such a withdrawal on behalf of the
Securities Administrator by a Paying Agent. Initially, the Paying Agent shall be
Xxxxx Fargo Bank, N.A. Whenever reference is made in this Agreement to a
distribution by the Securities Administrator or the furnishing of a statement to
Certificateholders by the Securities Administrator, such reference shall be
deemed to include such a distribution or furnishing on behalf of the Securities
Administrator by a Paying Agent. Each Paying Agent shall provide to the
Securities Administrator such information concerning the Certificate Account as
the Securities Administrator shall request from time to time. Each Paying Agent
must be reasonably acceptable to the Master Servicer and must be a corporation
or banking association organized and doing business under the laws of the United
States of America or of any state, having (except in the case of the Trustee or
the Securities Administrator) a principal office and place of business in New
York, New York, having a combined capital and surplus of at least $15,000,000,
authorized under such laws to do a trust business and subject to supervision or
examination by federal or state authorities. Any 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
Servicers; provided that the Paying Agent has returned to the Certificate
Account or otherwise accounted, to the reasonable satisfaction of the Securities
Administrator, for all amounts it has withdrawn from the Certificate Account.
The Securities Administrator may, upon prior written approval of the Master
Servicers, at any time terminate the agency of any Paying Agent by giving
written notice of termination to such Paying Agent and to the Master Servicers.
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 Servicers,
a successor Paying Agent, shall give written notice of such appointment to the
Master Servicers and shall mail notice of such appointment to all
Certificateholders. Any successor Paying Agent upon acceptance of its
appointment hereunder shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally
named as Paying Agent. The Securities Administrator shall remain liable for any
duties and obligations assumed by its appointed Paying Agent.
Section 9.14 Limitation of Liability. The Certificates are executed
by the Securities Administrator, not in its individual capacity but solely as
Securities Administrator of the Trust, in the exercise of the powers and
authority conferred and vested in it by this Agreement. Each of the undertakings
and agreements made on the part of the Securities Administrator in the
Certificates is made and intended not as a personal undertaking or agreement by
the Securities Administrator but is made and intended for the purpose of binding
only the Trust.
Section 9.15 Trustee or Securities Administrator May Enforce Claims
Without Possession of Certificates. All rights of action and claims under this
Agreement or the Certificates may be prosecuted and enforced by the Trustee or
the Securities Administrator without the possession of any of the Certificates
or the production thereof in any proceeding relating thereto, and such preceding
instituted by the Trustee or the Securities Administrator shall be brought in
its own name or in its capacity as Trustee or Securities Administrator. Any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursement and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Certificateholders in respect of
which such judgment has been recovered.
Section 9.16 Suits for Enforcement. In case an Event of Default or
other default by a Master Servicer or the Depositor hereunder shall occur and be
continuing, the Trustee, in its discretion, may proceed to protect and enforce
its rights and the rights of the Holders of Certificates under this Agreement by
a suit, action or proceeding in equity or at law or otherwise, whether for the
specific performance of any covenant or agreement contained in this Agreement or
in aid of the execution of any power granted in this Agreement or for the
enforcement of any other legal, equitable or other remedy, as the Trustee, being
advised by counsel, shall deem most effectual to protect and enforce any of the
rights of the Trustee and the Certificateholders.
Section 9.17 Waiver of Bond Requirement. The Trustee shall be
relieved of, and each Certificateholder hereby waives, any requirement of any
jurisdiction in which the Trust, or any part thereof, may be located that the
Trustee post a bond or other surety with any court, agency or body whatsoever.
Section 9.18 Waiver of Inventory, Accounting and Appraisal
Requirement. The Trustee shall be relieved of, and each Certificateholder hereby
waives, any requirement of any jurisdiction in which the Trust, or any part
thereof, may be located that the Trustee file any inventory, accounting or
appraisal of the Trust with any court, agency or body at any time or in any
manner whatsoever.
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase or Liquidation of All
Mortgage Loans. Subject to Section 10.02, the respective obligations and
responsibilities of the Depositor, the Master Servicers, 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 each Call Right Holder at a price
equal to the sum of (i) 100% of the Stated Principal Balance of each Mortgage
Loan (other than any Mortgage Loan as to which REO Property has been acquired
and whose fair market value is included pursuant to clause (ii) below) and (ii)
the fair market value of such REO Property, 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 Stated Principal Balance of each Mortgage Loan
(including any Mortgage Loan as to which REO Property has been acquired) or (b)
the final payment or other liquidation (or any advance with respect thereto) of
the last Mortgage Loan remaining in the Trust Estate or the disposition of all
REO Property.
The WF Master Servicer, as a Call Right Holder, may not exercise its
purchase option for the WF Group 4 Call Right Mortgage Loans until all WF Master
Serviced Loan Reimbursement Amounts for the WF Group 4 Call Right Mortgage Loans
have been paid. The WMMSC Master Servicer, as a Call Right Holder, may not
exercise its purchase option for the WMMSC Group 4 Call Right Mortgage Loans
until all WMMSC Master Serviced Loan Reimbursement Amounts for the WMMSC Group 4
Call Right Mortgage Loans have been paid. The WMMSC Master Servicer, as a Call
Right Holder, may not exercise its purchase option for the Group 1 Mortgage
Loans until all WMMSC Master Serviced Loan Reimbursement Amounts for the Group 1
Mortgage Loans have been paid. The WF Master Servicer, as a Call Right Holder,
may not exercise its purchase option for the Group 2, Group 3 and Group 5
Mortgage Loans until all WF Master Serviced Loan Reimbursement Amounts for the
Group 2, Group 3 and Group 5 Mortgage Loans have been paid. The Securities
Administrator shall notify the Representing Party (if such party is unaffiliated
with the WMMSC Master Servicer), upon notice of the WMMSC Master Servicer's
intent to exercise its purchase option of either the WMMSC Group 4 Call Right
Mortgage Loans or the Group 1 Mortgage Loans, of any WMMSC Master Serviced Loan
Reimbursement Amounts outstanding on the applicable Mortgage Loans and the
Representing Party shall remit to the Securities Administrator for deposit to
the Certificate Account any unpaid WMMSC Master Serviced Loan Reimbursement
Amounts for the applicable Mortgage Loans not later than the Business Day
preceding the next succeeding Distribution Date. The Securities Administrator
shall notify the Seller, upon notice of WF Master Servicer's intent to exercise
its purchase option or the WF Group 1 Call Right Mortgage Loans or Group 2,
Group 3 and Group 5 Mortgage Loans, of any WF Master Serviced Loan Reimbursement
Amount outstanding.
Regardless of the foregoing, in no event shall the Trust created
hereby continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof.
The right of the WF Master Servicer, as a Call Right Holder, to
purchase the WF Group 4 Call Right Mortgage Loans or Group 2, Group 3 and Group
5 Mortgage Loans is conditioned upon the aggregate Stated Principal Balance of
the WF Group 4 Call Right Mortgage Loans or the aggregate Stated Principal
Balance of the Group 2, Group 3 and Group 5 Mortgage Loans, as applicable, being
less than 1% of the aggregate Cut-off Date Stated Principal Balance of such
Mortgage Loans subject to the related purchase option. The right of the WMMSC
Master Servicer, as a Call Right Holder, to purchase the WMMSC Group 4 Call
Right Mortgage Loans or the Group 1 Mortgage Loans is conditioned upon the
aggregate Stated Principal Balance of the WMMSC Group 4 Call Right Mortgage
Loans or the Group 1 Mortgage Loans, as applicable, being less than 1% of the
aggregate Cut-off Date Stated Principal Balance of such Mortgage Loans subject
to the related purchase option. In addition, the right of any Call Right Holder
to purchase the applicable 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 a Call Right Holder if, at the time of purchase, such Call Right
Holder is no longer subject to regulation by the Office of the Comptroller of
the Currency, the FDIC, the Federal Reserve or the OTS. Fair market value for
the purposes of the previous sentence and the first paragraph of this Section
10.01 will be determined by the Call Right Holder exercising its purchase right
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 Article X.
If such right is exercised by the WF Master Servicer or the WMMSC
Master Servicer, as applicable, the Securities Administrator shall, promptly
following payment of the purchase price, release to the WF Master Servicer or
the WMMSC Master Servicer, as applicable, or their respective designees, the
Mortgage Files pertaining to such Mortgage Loans being purchased.
Notice of the exercise of any purchase option by any 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. Any Call Right Holder exercising its
respective call right shall remit to the Securities Administrator for deposit to
the Certificate Account on or before the Final Distribution Date or the
applicable Distribution Date, in immediately available funds an amount equal to
the amount necessary to make the amount, if any, on deposit in the Certificate
Account on such Final Distribution Date or Distribution Date, as applicable,
equal to the purchase price for the related assets of the Trust Estate or any
portion of the Trust Estate computed as above provided together with a statement
as to the amount to be distributed on each applicable Class of Certificates
pursuant to the next succeeding paragraph.
Upon 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 accrued
interest thereon in the case of an interest-bearing Certificate and (II) as to
the Class 1-A-R and Class 1-A-LR Certificates, as applicable, the amounts, if
any, which remain on deposit in the Certificate Account with respect to the
related Mortgage Loans (and are deemed to be on deposit in Sub-Account WF-4,
Sub-Account WF-RCR, Sub-Account WMMSC-1 or Sub-Account WMMSC-4, as applicable,
other than the amounts retained to meet claims) after application pursuant to
clause (I) above. An amount shall be distributed in respect of interest and
principal, as applicable, to the Uncertificated Pooling REMIC Interests and to
the Uncertificated Group REMIC Interests in the same manner as principal and
interest are distributed to the Uncertificated Pooling REMIC Interests and
Uncertificated Group REMIC Interests, respectively, as provided in Section 5.02.
If the applicable Certificateholders do not surrender their
Certificates for final payment and cancellation on or before the Final
Distribution Date, the Securities Administrator shall on such date cause all
funds in the Certificate Account not distributed in final distribution to such
Certificateholders of such Group to continue to be held by the Securities
Administrator in an Eligible Account for the benefit of such Certificateholders
and the Securities Administrator shall give a second written notice to the
remaining applicable Certificateholders to surrender their Certificates for
cancellation and receive a final distribution with respect thereto. If within
one 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 a Call Right Holder as
provided in Section 10.01 that results in a final distribution, 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
any 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 applicable 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 applicable 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 applicable REMIC.
(b) By their acceptance of the Residual Certificates, the Holders
thereof hereby agree to take such other action in connection with such plan of
complete liquidation as may be reasonably requested by the Depositor, 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 Servicers, 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 each REMIC created hereunder 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 any REMIC pursuant to the Code
that would be a claim against the Trust Estate, provided that (a) the Trustee
and the Securities Administrator have received an Opinion of Counsel to the
effect that such action is necessary or desirable to maintain such qualification
or to avoid or minimize the risk of the imposition of any such tax and (b) such
action shall not, as evidenced by such Opinion of Counsel, adversely affect in
any material respect the interests of any Certificateholder, (iv) to change the
timing and/or nature of deposits into the Certificate Account provided that (a)
such change shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interests of any Certificateholder and (b) such
change shall not adversely affect the then-current rating of the Senior
Certificates, the Class B-1, Class B-2, Class B-3, Class B-4 or Class B-5
Certificates as evidenced by a letter from each Rating Agency rating such
Certificates to such effect and (v) to make any other provisions with respect to
matters or questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder, provided that the
amendment shall not be deemed to adversely affect in any material respect the
interests of the Certificateholders and no Opinion of Counsel to that effect
shall be required if the Person requesting the amendment obtains a letter from
each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Certificates.
This Agreement may also be amended from time to time by the
Depositor, the Master Servicers, the Securities Administrator and the Trustee,
with the consent of the Holders of Certificates of each Class of Certificates
which is affected by such amendment, evidencing, as to each such Class of
Certificates, Percentage Interests aggregating not less than 66-2/3%, for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
the Holders of such Certificates; provided, however, that no such amendment
shall (A) reduce in any manner the amount of, or delay the timing of,
collections of payments on Mortgage Loans or distributions which are required to
be made on any Certificate without the consent of the Holder of such Certificate
or (B) reduce the aforesaid percentage required to consent to any such
amendment, without the consent of the Holders of all Certificates then
Outstanding.
Prior to the solicitation of consent of Certificateholders in
connection with any such amendment, the party seeking such amendment shall
furnish the Trustee and the Securities Administrator with an Opinion of Counsel
stating whether such amendment would adversely affect the qualification of any
REMIC created hereunder as a REMIC and notice of the conclusion expressed in
such Opinion of Counsel shall be included with any such solicitation. An
amendment made with the consent of all Certificateholders and executed in
accordance with this Section 11.01 shall be permitted or authorized by this
Agreement notwithstanding that such Opinion of Counsel may conclude that such
amendment would adversely affect the qualification of any REMIC created
hereunder as a REMIC.
Promptly after the execution of any such amendment or consent the
Securities Administrator shall furnish written notification of the substance of
or a copy of such amendment to each Certificateholder and to each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable requirements as the Securities Administrator may prescribe.
Section 11.02 Recordation of Agreement; Counterparts. This Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Securities Administrator at its expense, at the direction of
Holders of Certificates evidencing not less than 50% of all Voting Rights, but
only upon delivery to the Securities Administrator at the expense of the
requesting Certificateholders of an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 11.03 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust, or the obligations of the parties hereto, nor shall anything
herein set forth, or contained in the terms of the Certificates, be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Securities Administrator a
written notice of default and of the continuance thereof, as provided herein,
and unless also the Holders of Certificates evidencing Percentage Interests
aggregating not less than 25% of each Class of Certificates affected thereby
shall have made written request upon the Securities Administrator to institute
such action, suit or proceeding in its own name as Securities Administrator
hereunder and shall have offered to the Securities Administrator such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Securities Administrator, for 60 days after
its receipt of such notice, request and offer of indemnity, shall have neglected
or refused to institute any such action, suit or proceeding; it being understood
and intended, and being expressly covenanted by each Certificateholder with
every other Certificateholder and the Securities Administrator, that no one or
more Holders of Certificates shall have any right in any manner whatever by
virtue or by availing itself or themselves of any provisions of this Agreement
to affect, disturb or prejudice the rights of the Holders of any other of the
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Agreement, except in the
manner herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 11.03, each and every Certificateholder and the Securities Administrator
shall be entitled to such relief as can be given either at law or in equity.
Section 11.04 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT APPLICATION OF THE
CONFLICTS OF LAWS PROVISIONS THEREOF, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
With respect to any claim arising out of this Agreement, each party
irrevocably submits to the exclusive jurisdiction of the courts of the State of
New York and the United States District Court located in the Borough of
Manhattan in The City of New York, and each party irrevocably waives any
objection which it may have at any time to the laying of venue of any suit,
action or proceeding arising out of or relating hereto brought in any such
courts, irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in any inconvenient forum and further
irrevocably waives the right to object, with respect to such claim, suit, action
or proceeding brought in any such court, that such court does not have
jurisdiction over such party, provided that service of process has been made by
any lawful means.
Section 11.05 Notices. All demands, notices, instructions,
directions, requests and communications required or permitted to be delivered
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by certified mail, return receipt requested,
(provided, however, that notices to the Securities Administrator may be
delivered by facsimile and shall be deemed effective upon receipt) to (a) in the
case of the Depositor, Banc of America Funding Corporation, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: General Counsel and Chief
Financial Officer, (b) in the case of the WF Master Servicer, Xxxxx Fargo Bank,
N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: BAFC 2004-D,
(c) in the case of the WMMSC Master Servicer, Washington Mutual Mortgage
Securities Corp., 000 Xxxxx Xxxxxxxxx Xxx (XXX0X00), Xxxxxx Xxxxx, Xxxxxxxx
00000, Attention: Master Servicer, with a copy to Washington Mutual Mortgage
Securities Corp., 0000 Xxxxx Xxxxxx, XXX 0000, Xxxxxxx, XX 00000, Attention:
General Counsel, (d) in the case of the Securities Administrator, Xxxxx Fargo
Bank, N.A., X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, Attention: BAFC, Series
2004-D, and for overnight delivery purposes, Xxxxx Fargo Bank, N.A., 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: BAFC, Series 2004-D,
with a copy to Xxxxx Fargo Bank, N.A., Sixth and Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx, 00000, Attention: BAFC, Series 2004-D, (e) in the case of the
Trustee, Wachovia Bank, National Association, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, Attention: Structured Finance Services, BAFC 2004-D, (f)
in the case of Moody's, Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attn: Residential Mortgage Monitoring Group, and (g) in
the case of S&P, Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attn: Residential Mortgage
Surveillance Manager; 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 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.
IN WITNESS WHEREOF, the Depositor, the Master Servicers, the
Representing Party, the Securities Administrator and the Trustee have caused
this Agreement to be duly executed by their respective officers thereunto duly
authorized to be hereunto affixed, all as of the day and year first above
written.
BANC OF AMERICA FUNDING CORPORATION,
as Depositor
By:________________________________________
Name:
Title:
XXXXX FARGO BANK, N.A.,
as a Master Servicer
By:________________________________________
Name:
Title:
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By:________________________________________
Name:
Title:
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.,
as a Master Servicer and Representing
Party
By:________________________________________
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By:________________________________________
Name:
Title:
STATE OF MARYLAND )
) ss.:
COUNTY COLUMBIA )
On the 29th day of December, 2004, before me, a notary public in and
for the State of Maryland, personally appeared Xxxxx X. Xxxxxx, known to me who,
being by me duly sworn, did depose and say that he is a Vice President of Xxxxx
Fargo Bank, N.A., a national banking association, one of the parties that
executed the foregoing instrument; and that he signed his name thereto by order
of the Board of Directors of such association.
_______________________________________
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 29th day of December, 2004, before me, a notary public in and
for the State of North Carolina, personally appeared Xxxxx Xxxxx, known to me
who, being by me duly sworn, did depose and say that he is a Senior Vice
President of Banc of America Funding Corporation, a Delaware corporation, one of
the parties that executed the foregoing instrument; and that he signed his name
thereto by order of the Board of Directors of such corporation.
_______________________________________
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 29th day of December, 2004, before me, a notary public in and
for the State of North Carolina, personally appeared ______________, known to me
who, being by me duly sworn, did depose and say that he is a _____________ of
Wachovia Bank, National Association, a national banking association, one of the
parties that executed the foregoing instrument; and that he signed his name
thereto by order of the Board of Directors of such association.
_______________________________________
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF MARYLAND )
) ss.:
COUNTY COLUMBIA )
On the 29th day of December, 2004, before me, a notary public in and
for the State of Maryland, personally appeared Xxxxx X. Xxxxxx, known to me who,
being by me duly sworn, did depose and say that he is a Vice President of Xxxxx
Fargo Bank, N.A., a national banking association, one of the parties that
executed the foregoing instrument; and that he signed his name thereto by order
of the Board of Directors of such association.
_______________________________________
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF WASHINGTON )
) ss.:
COUNTY OF KING )
On the 29th day of December, 2004, before me, a notary public in and
for the State of Washington, personally appeared __________________, known to me
who, being by me duly sworn, did depose and say that s/he is a _________________
of Washington Mutual Mortgage Securities Corp., a Delaware corporation, one of
the parties that executed the foregoing instrument; and that s/he signed his/her
name thereto by order of the Board of Directors of such corporation.
_______________________________________
Notary Public
[Notarial Seal]
My commission expires ____________.
EXHIBIT 1-A-1
[FORM OF FACE OF CLASS 1-A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
Class 1-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
Class 1-A-1
evidencing an interest in a Trust consisting primarily of five loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: December 1, 2004
First Distribution Date: January 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $106,410,000.00
Pass-Through Rate: Variable
CUSIP No.: 05946X MY 6
ISIN No.: US05946XMY66
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 December 29, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Washington Mutual Mortgage
Securities Corp., as a master servicer (the "WMMSC Master Servicer") and
representing party (the "Representing Party"), Xxxxx Fargo Bank, N.A., as
securities administrator (the "Securities Administrator") and a master servicer
(the "WF Master Servicer," and together with the WMMSC Master Servicer, the
"Master Servicers"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicers, the
Representing Party, the Securities Administrator or the Trustee or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate equal to
the Net WAC of the Group 1 Mortgage Loans.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT 1-A-R
[FORM OF FACE OF CLASS 1-A-R CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
Class 1-A-R
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CLASS 1-A-R CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW WHICH IS SIMILAR
TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), OR A PERSON ACTING ON BEHALF OF
OR INVESTING ASSETS OF A PLAN.
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN TAX RELATED TRANSFER
RESTRICTIONS DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT. ANY
ATTEMPTED OR PURPORTED TRANSFER OF THIS CLASS 1-A-R CERTIFICATE IN VIOLATION OF
SUCH RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN
THE PURPORTED TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
Class 1-A-R
evidencing a 100% Percentage Interest in the distributions allocable to the
Certificate of the above-referenced Class with respect to a Trust consisting
primarily of five loan groups (the "Mortgage Loans") secured by first liens on
one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: December 1, 2004
First Distribution Date: January 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $50.00
Pass-Through Rate: Variable
CUSIP No.: 05946X MZ 3
ISIN No.: US05946XMZ32
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 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 December 29, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Washington Mutual Mortgage
Securities Corp., as a master servicer (the "WMMSC Master Servicer") and
representing party (the "Representing Party"), Xxxxx Fargo Bank, N.A., as
securities administrator (the "Securities Administrator") and a master servicer
(the "WF Master Servicer," and together with the WMMSC Master Servicer, the
"Master Servicers"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicers, the
Representing Party, 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.
Each Person who has or who acquires this Class 1-A-R Certificate shall be
deemed by the acceptance or acquisition thereof to have agreed to be bound by
the following provisions and the rights of each Person acquiring this Class
1-A-R Certificate are expressly subject to the following provisions: (i) each
Person holding or acquiring this Class 1-A-R Certificate shall be a Permitted
Transferee and shall promptly notify the Securities Administrator of any change
or impending change in its status as a Permitted Transferee; (ii) no Person
shall acquire an ownership interest in this Class 1-A-R Certificate unless such
ownership interest is a pro rata undivided interest; (iii) in connection with
any proposed transfer of this Class 1-A-R Certificate, the Securities
Administrator shall require delivery to it, in form and substance satisfactory
to it, of an affidavit in the form of Exhibit I to the Pooling and Servicing
Agreement; (iv) notwithstanding the delivery of an affidavit by a proposed
transferee under clause (iii) above, if a Responsible Officer of the Securities
Administrator has actual knowledge that the proposed transferee is not a
Permitted Transferee, no transfer of any Ownership Interest in this Class 1-A-R
Certificate to such proposed transferee shall be effected; (v) this Class 1-A-R
Certificate may not be purchased by or transferred to any Person that is not a
U.S. Person, unless (A) such Person holds this Class 1-A-R Certificate in
connection with the conduct of a trade or business within the United States and
furnishes the transferor and the Securities Administrator with an effective
Internal Revenue Service Form W-8ECI (or any successor thereto) or (B) the
transferee delivers to both the transferor and the Securities Administrator an
Opinion of Counsel from a nationally-recognized tax counsel to the effect that
such transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of this Class 1-A-R
Certificate will not be disregarded for federal income tax purposes; (vi) any
attempted or purported transfer of this Class 1-A-R Certificate in violation of
the provisions of such restrictions shall be absolutely null and void and shall
vest no rights in the purported transferee; and (vii) if any Person other than a
Permitted Transferee acquires the Class 1-A-R Certificate in violation of such
restrictions, then the Securities Administrator, based on information provided
to the Securities Administrator by the related 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.
Interest will accrue on these Certificates at a per annum rate equal to
the Net WAC of the Group 1 Mortgage Loans.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT 1-A-LR
[FORM OF FACE OF CLASS 1-A-LR CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
Class 1-A-LR
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN MULTIPLE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE").
THIS CLASS 1-A-LR CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW WHICH IS SIMILAR
TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), OR A PERSON ACTING ON BEHALF OF
OR INVESTING ASSETS OF A PLAN.
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN TAX RELATED TRANSFER
RESTRICTIONS DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT. ANY
ATTEMPTED OR PURPORTED TRANSFER OF THIS CLASS 1-A-LR CERTIFICATE IN VIOLATION OF
SUCH RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN
THE PURPORTED TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
Class 1-A-LR
evidencing a 100% Percentage Interest in the distributions allocable to the
Certificate of the above-referenced Class with respect to a Trust consisting
primarily of five loan groups (the "Mortgage Loans") secured by first liens on
one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: December 1, 2004
First Distribution Date: January 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $50.00
Pass-Through Rate: Variable
CUSIP No.: 05946X NA 7
ISIN No.: US05946XNA71
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 December 29, 2004 (the
"Pooling and Servicing Agreement"), among the Depositor, Washington Mutual
Mortgage Securities Corp., as a master servicer (the "WMMSC Master Servicer")
and representing party (the "Representing Party"), Xxxxx Fargo Bank, N.A., as
securities administrator (the "Securities Administrator") and a master servicer
(the "WF Master Servicer," and together with the WMMSC Master Servicer, the
"Master Servicers"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicers, the
Representing Party, the Securities Administrator or the Trustee referred to
below or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
Any distribution of the proceeds of any remaining assets of the
Certificate Account will be made only upon presentment and surrender of this
Class 1-A-LR Certificate at the Corporate Trust Office.
Each Person who has or who acquires this Class 1-A-LR Certificate shall be
deemed by the acceptance or acquisition thereof to have agreed to be bound by
the following provisions and the rights of each Person acquiring this Class
1-A-LR Certificate are expressly subject to the following provisions: (i) each
Person holding or acquiring this Class 1-A-LR Certificate shall be a Permitted
Transferee and shall promptly notify the Securities Administrator of any change
or impending change in its status as a Permitted Transferee; (ii) no Person
shall acquire an ownership interest in this Class 1-A-LR Certificate unless such
ownership interest is a pro rata undivided interest; (iii) in connection with
any proposed transfer of this Class 1-A-LR Certificate, the Securities
Administrator shall require delivery to it, in form and substance satisfactory
to it, of an affidavit in the form of Exhibit I to the Pooling and Servicing
Agreement; (iv) notwithstanding the delivery of an affidavit by a proposed
transferee under clause (iii) above, if a Responsible Officer of the Securities
Administrator has actual knowledge that the proposed transferee is not a
Permitted Transferee, no transfer of any Ownership Interest in this Class 1-A-LR
Certificate to such proposed transferee shall be effected; (v) this Class 1-A-LR
Certificate may not be purchased by or transferred to any Person that is not a
U.S. Person, unless (A) such Person holds this Class 1-A-LR Certificate in
connection with the conduct of a trade or business within the United States and
furnishes the transferor and the Securities Administrator with an effective
Internal Revenue Service Form W-8ECI (or any successor thereto) or (B) the
transferee delivers to both the transferor and the Securities Administrator an
Opinion of Counsel from a nationally-recognized tax counsel to the effect that
such transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of this Class 1-A-LR
Certificate will not be disregarded for federal income tax purposes; (vi) any
attempted or purported transfer of this Class 1-A-LR Certificate in violation of
the provisions of such restrictions shall be absolutely null and void and shall
vest no rights in the purported transferee; and (vii) if any Person other than a
Permitted Transferee acquires the Class 1-A-LR Certificate in violation of such
restrictions, then the Securities Administrator, based on information provided
to the Securities Administrator by the related 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.
Interest will accrue on these Certificates at a per annum rate equal to
the Net WAC of the Group 1 Mortgage Loans.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT 2-A-1
[FORM OF FACE OF CLASS 2-A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
Class 2-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
Class 2-A-1
evidencing an interest in a Trust consisting primarily of five loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: December 1, 2004
First Distribution Date: January 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $47,696,000.00
Pass-Through Rate: Variable
CUSIP No.: 05946X NB 5
ISIN No.: US05946XNB54
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 December 29, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Washington Mutual Mortgage
Securities Corp., as a master servicer (the "WMMSC Master Servicer") and
representing party (the "Representing Party"), Xxxxx Fargo Bank, N.A., as
securities administrator (the "Securities Administrator") and a master servicer
(the "WF Master Servicer," and together with the WMMSC Master Servicer, the
"Master Servicers"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicers, the
Representing Party, the Securities Administrator or the Trustee or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate equal to
the Net WAC of the Group 2 Mortgage Loans.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT 3-A-1
[FORM OF FACE OF CLASS 3-A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
Class 3-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
Class 3-A-1
evidencing an interest in a Trust consisting primarily of five loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: December 1, 2004
First Distribution Date: January 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $42,331,000.00
Pass-Through Rate: Variable
CUSIP No.: 05946X NC 3
ISIN No.: US05946XNC38
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 December 29, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Washington Mutual Mortgage
Securities Corp., as a master servicer (the "WMMSC Master Servicer") and
representing party (the "Representing Party"), Xxxxx Fargo Bank, N.A., as
securities administrator (the "Securities Administrator") and a master servicer
(the "WF Master Servicer," and together with the WMMSC Master Servicer, the
"Master Servicers"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicers, the
Representing Party, the Securities Administrator or the Trustee or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate equal to
the Net WAC of the Group 3 Mortgage Loans.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT 4-A-1
[FORM OF FACE OF CLASS 4-A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
Class 4-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
Class 4-A-1
evidencing an interest in a Trust consisting primarily of five loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: December 1, 2004
First Distribution Date: January 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $32,434,000.00
Pass-Through Rate: Variable
CUSIP No.: 05946X ND 1
ISIN No.: US05946XND11
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 December 29, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Washington Mutual Mortgage
Securities Corp., as a master servicer (the "WMMSC Master Servicer") and
representing party (the "Representing Party"), Xxxxx Fargo Bank, N.A., as
securities administrator (the "Securities Administrator") and a master servicer
(the "WF Master Servicer," and together with the WMMSC Master Servicer, the
"Master Servicers"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicers, the
Representing Party, the Securities Administrator or the Trustee or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate equal to
the Net WAC of the Group 4 Mortgage Loans.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT 5-A-1
[FORM OF FACE OF CLASS 5-A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
Class 5-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
Class 5-A-1
evidencing an interest in a Trust consisting primarily of five loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: December 1, 2004
First Distribution Date: January 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $137,921,000.00
Pass-Through Rate: Variable
CUSIP No.: 05946X NE 9
ISIN No.: US05946XNE93
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 December 29, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Washington Mutual Mortgage
Securities Corp., as a master servicer (the "WMMSC Master Servicer") and
representing party (the "Representing Party"), Xxxxx Fargo Bank, N.A., as
securities administrator (the "Securities Administrator") and a master servicer
(the "WF Master Servicer," and together with the WMMSC Master Servicer, the
"Master Servicers"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicers, the
Representing Party, the Securities Administrator or the Trustee or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate equal to
the Net WAC of the Group 5 Mortgage Loans.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT 5-A-2
[FORM OF FACE OF CLASS 5-A-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
Class 5-A-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
AFTER THE SENIOR CREDIT SUPPORT DEPLETION DATE, THE PRINCIPAL PORTION OF
REALIZED LOSSES ALLOCATED TO THE CLASS 5-A-1 CERTIFICATES WILL BE BORNE BY THE
CLASS 5-A-2 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
Class 5-A-2
evidencing an interest in a Trust consisting primarily of five loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: December 1, 2004
First Distribution Date: January 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $3,082,000.00
Pass-Through Rate: Variable
CUSIP No.: 05946X NF 6
ISIN No.: US05946XNF68
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 December 29, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Washington Mutual Mortgage
Securities Corp., as a master servicer (the "WMMSC Master Servicer") and
representing party (the "Representing Party"), Xxxxx Fargo Bank, N.A., as
securities administrator (the "Securities Administrator") and a master servicer
(the "WF Master Servicer," and together with the WMMSC Master Servicer, the
"Master Servicers"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicers, the
Representing Party, the Securities Administrator or the Trustee or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate equal to
the Net WAC of the Group 5 Mortgage Loans.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-1
[FORM OF FACE OF CLASS B-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
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.
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 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 SERVICERS, THE REPRESENTING PARTY, 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.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
Class B-1
evidencing an interest in a Trust consisting primarily of five loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: December 1, 2004
First Distribution Date: January 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $5,389,000.00
Pass-Through Rate: Variable
CUSIP No.: 05946X NG 4
ISIN No.: US05946XNG42
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 December 29, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Washington Mutual Mortgage
Securities Corp., as a master servicer (the "WMMSC Master Servicer") and
representing party (the "Representing Party"), Xxxxx Fargo Bank, N.A., as
securities administrator (the "Securities Administrator") and a master servicer
(the "WF Master Servicer," and together with the WMMSC Master Servicer, the
"Master Servicers"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicers, the
Representing Party, the Securities Administrator or the Trustee or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
Interest will accrue on these Certificates as of any Distribution Date at
a per annum rate equal to the weighted average (based on the Group Subordinate
Amount for each Loan Group) of the Net WAC of the Group 1, Group 2, Group 3,
Group 4 and Group 5 Mortgage Loans.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-2
[FORM OF FACE OF CLASS B-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
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.
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 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 SERVICERS, THE REPRESENTING PARTY, 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.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AND THE CLASS B-1 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
Class B-2
evidencing an interest in a Trust consisting primarily of five loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: December 1, 2004
First Distribution Date: January 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $3,848,000.00
Pass-Through Rate Variable
CUSIP No.: 05946X NH 2
ISIN No.: US05946XNH25
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 December 29, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Washington Mutual Mortgage
Securities Corp., as a master servicer (the "WMMSC Master Servicer") and
representing party (the "Representing Party"), Xxxxx Fargo Bank, N.A., as
securities administrator (the "Securities Administrator") and a master servicer
(the "WF Master Servicer," and together with the WMMSC Master Servicer, the
"Master Servicers"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicers, the
Representing Party, the Securities Administrator or the Trustee or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
Interest will accrue on these Certificates as of any Distribution Date at
a per annum rate equal to the weighted average (based on the Group Subordinate
Amount for each Loan Group) of the Net WAC of the Group 1, Group 2, Group 3,
Group 4 and Group 5 Mortgage Loans.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-3
[FORM OF FACE OF CLASS B-3 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
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.
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 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 SERVICERS, THE REPRESENTING PARTY, 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.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES,
THE CLASS B-1 CERTIFICATES AND THE CLASS B-2 CERTIFICATES AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
Class B-3
evidencing an interest in a Trust consisting primarily of five loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: December 1, 2004
First Distribution Date: January 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $2,117,000.00
Pass-Through Rate Variable
CUSIP No.: 05946X NJ 8
ISIN No.: US05946XNJ80
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 December 29, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Washington Mutual Mortgage
Securities Corp., as a master servicer (the "WMMSC Master Servicer") and
representing party (the "Representing Party"), Xxxxx Fargo Bank, N.A., as
securities administrator (the "Securities Administrator") and a master servicer
(the "WF Master Servicer," and together with the WMMSC Master Servicer, the
"Master Servicers"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicers, the
Representing Party, the Securities Administrator or the Trustee or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
Interest will accrue on these Certificates as of any Distribution Date at
a per annum rate equal to the weighted average (based on the Group Subordinate
Amount for each Loan Group) of the Net WAC of the Group 1, Group 2, Group 3,
Group 4 and Group 5 Mortgage Loans.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-4
[FORM OF FACE OF CLASS B-4 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
Class B-4
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES,
THE CLASS B-1 CERTIFICATES, THE CLASS B-2 CERTIFICATES AND THE CLASS B-3
CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE 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 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 SERVICERS, THE REPRESENTING PARTY, 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.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
Class B-4
evidencing an interest in a Trust consisting primarily of five loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: December 1, 2004
First Distribution Date: January 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,155,000.00
Pass-Through Rate Variable
CUSIP No.: 05946X NK 5
ISIN No.: US05946XNK53
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 December 29, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Washington Mutual Mortgage
Securities Corp., as a master servicer (the "WMMSC Master Servicer") and
representing party (the "Representing Party"), Xxxxx Fargo Bank, N.A., as
securities administrator (the "Securities Administrator") and a master servicer
(the "WF Master Servicer," and together with the WMMSC Master Servicer, the
"Master Servicers"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicers, the
Representing Party, 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.
Interest will accrue on these Certificates as of any Distribution Date at
a per annum rate equal to the weighted average (based on the Group Subordinate
Amount for each Loan Group) of the Net WAC of the Group 1, Group 2, Group 3,
Group 4 and Group 5 Mortgage Loans.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-5
[FORM OF FACE OF CLASS B-5 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
Class B-5
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES,
THE CLASS B-1 CERTIFICATES, THE CLASS B-2 CERTIFICATES, THE CLASS B-3
CERTIFICATES AND THE CLASS B-4 CERTIFICATES AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE 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 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 SERVICERS, THE REPRESENTING PARTY, 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.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
Class B-5
evidencing an interest in a Trust consisting primarily of five loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: December 1, 2004
First Distribution Date: January 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $770,000.00
Pass-Through Rate Variable
CUSIP No.: 05946X NL 3
ISIN No.: US05946XNL37
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 December 29, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Washington Mutual Mortgage
Securities Corp., as a master servicer (the "WMMSC Master Servicer") and
representing party (the "Representing Party"), Xxxxx Fargo Bank, N.A., as
securities administrator (the "Securities Administrator") and a master servicer
(the "WF Master Servicer," and together with the WMMSC Master Servicer, the
"Master Servicers"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicers, the
Representing Party, 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.
Interest will accrue on these Certificates as of any Distribution Date at
a per annum rate equal to the weighted average (based on the Group Subordinate
Amount for each Loan Group) of the Net WAC of the Group 1, Group 2, Group 3,
Group 4 and Group 5 Mortgage Loans.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-6
[FORM OF FACE OF CLASS B-6 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
Class B-6
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES,
THE CLASS B-1 CERTIFICATES, THE CLASS B-2 CERTIFICATES, THE CLASS B-3
CERTIFICATES, THE CLASS B-4 CERTIFICATES AND THE CLASS B-5 CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE 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 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 SERVICERS, THE REPRESENTING PARTY, 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.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-D
Class B-6
evidencing an interest in a Trust consisting primarily of five loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: December 1, 2004
First Distribution Date: January 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,732,237.00
Pass-Through Rate Variable
CUSIP No.: 05946X NM 1
ISIN No.: US05946XNM10
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 December 29, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Washington Mutual Mortgage
Securities Corp., as a master servicer (the "WMMSC Master Servicer") and
representing party (the "Representing Party"), Xxxxx Fargo Bank, N.A., as
securities administrator (the "Securities Administrator") and a master servicer
(the "WF Master Servicer," and together with the WMMSC Master Servicer, the
"Master Servicers"), and Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicers, the
Representing Party, 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.
Interest will accrue on these Certificates as of any Distribution Date at
a per annum rate equal to the weighted average (based on the Group Subordinate
Amount for each Loan Group) of the Net WAC of the Group 1, Group 2, Group 3,
Group 4 and Group 5 Mortgage Loans.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT C
[FORM OF REVERSE OF ALL CERTIFICATES]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as Banc of America Funding Corporation Mortgage Pass-Through
Certificates, of the Series specified on the face hereof (collectively, the
"Certificates"), and representing a beneficial ownership interest in the Trust
created by the Pooling and Servicing Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the Pooling
and Servicing Agreement or, except as expressly provided in the Pooling and
Servicing Agreement, subject to any liability under the Pooling and Servicing
Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to the Pooling and Servicing Agreement for the
interests, rights and limitations of rights, benefits, obligations and duties
evidenced thereby, and the rights, duties and immunities of the Securities
Administrator.
Pursuant to the terms of the Pooling and Servicing Agreement, a
distribution will be made on the 25th day of each calendar month (or, if such
day is not a Business Day, the next Business Day) (each, a "Distribution Date"),
commencing on the first Distribution Date specified on the face hereof, to the
Person in whose name this Certificate is registered at the close of business on
the applicable Record Date in an amount required pursuant to the Pooling and
Servicing Agreement.
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 with respect to 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. The final distribution on
each Certificate will be made in like manner, but only upon presentation and
surrender of such Certificate to the Securities Administrator as contemplated by
Section 10.01 of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Securities Administrator and the rights of the
Certificateholders under the Pooling and Servicing Agreement at any time by the
Depositor, the Master Servicers, the Representing Party, 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 Servicers, the Certificate Registrar, the
Representing Party, the Securities Administrator and the Trustee and any agent
of the Depositor, the Master Servicers, the Certificate Registrar, the
Representing Party, 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 Servicers, the Certificate
Registrar, the Trustee, the Representing Party, the Securities Administrator or
any such agent shall be affected by any notice to the contrary.
Each Call Right Holder has the option to purchase certain groupings of
Mortgage Loans under the conditions set forth in Section 10.01 of the Pooling
and Servicing Agreement. In the event that no such optional repurchases occur,
the obligations and responsibilities created by the Pooling and Servicing
Agreement will terminate upon the later of the maturity or other liquidation (or
any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust or the disposition of all property in respect thereof and the distribution
to Certificateholders of all amounts required to be distributed pursuant to the
Pooling and Servicing Agreement. In no event shall the Trust created by the
Pooling and Servicing Agreement continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
thereof.
Any term used herein that is defined in the Pooling and Servicing
Agreement shall have the meaning assigned in the Pooling and Servicing
Agreement, and nothing herein shall be deemed inconsistent with that meaning.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By__________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the Pooling and Servicing
Agreement referenced herein.
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By__________________________________
Authorized Signatory
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
______________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________________
for the account of _________________, account number __________________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT D-1
LOAN GROUP 1 MORTGAGE LOAN SCHEDULE
[Available Upon Request From Securities Administrator]
EXHIBIT D-2
LOAN GROUP 2 MORTGAGE LOAN SCHEDULE
[Available Upon Request From Securities Administrator]
EXHIBIT D-3
LOAN GROUP 3 MORTGAGE LOAN SCHEDULE
[Available Upon Request From Securities Administrator]
EXHIBIT D-4
LOAN GROUP 4 MORTGAGE LOAN SCHEDULE
[Available Upon Request From Securities Administrator]
EXHIBIT D-5
LOAN GROUP 5 MORTGAGE LOAN SCHEDULE
[Available Upon Request From Securities Administrator]
EXHIBIT E
REQUEST FOR RELEASE OF DOCUMENTS
[date]
To: [U.S. Bank National Association
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, XX 00000-0000]
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000]
Re: The Pooling and Servicing Agreement dated December 29, 2004, among Banc of
America Funding Corporation, as Depositor, Washington Mutual Mortgage
Securities Corp., as a master servicer and Representing Party, Xxxxx Fargo
Bank, N.A., as Securities Administrator and a master servicer, and
Wachovia Bank, National Association, as Trustee.
In connection with the administration of the Mortgage Loans held by you,
as [Trustee][Custodian], pursuant to the above-captioned Pooling and Servicing
Agreement, we request the release, and hereby acknowledge receipt, of the
Mortgage File for the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
--------------------
Mortgagor Name, Address & Zip Code:
----------------------------------
Reason for Requesting Documents (check one)
-------------------------------
____ 1. Mortgage Paid in Full
____ 2. Foreclosure
____ 3. Substitution
____ 4. Other Liquidation
____ 5. Nonliquidation Reason: ___________________
By:___________________________________
(authorized signer of [Servicer]
[WMMSC Master Servicer])
Issuer:_______________________________
Address:______________________________
______________________________________
Date:_________________________________
[Custodian][Trustee]
--------------------
[U.S. Bank National Association]
[Wachovia Bank, National Association]
Please acknowledge the execution of the above request by your signature and date
below:
__________________________________ _______________
Signature Date
Documents returned to [Custodian][Trustee]:
___________________________________ ________________
[Custodian][Trustee] Date
EXHIBIT F
FORM OF CERTIFICATION OF ESTABLISHMENT OF ACCOUNT
[Date]
[_______________] hereby certifies that it has established a [__________]
Account pursuant to Section [________] of the Pooling and Servicing Agreement,
dated December 29, 2004, among Banc of America Funding Corporation, as
Depositor, Washington Mutual Mortgage Securities Corp., as WMMSC Master Servicer
and Representing Party, Xxxxx Fargo Bank, N.A., as Securities Administrator and
WF Master Servicer, and Wachovia Bank, National Association, as Trustee.
[_______________],
By:___________________________________
Name:_________________________________
Title:________________________________
EXHIBIT G-1
FORM OF TRANSFEROR'S CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2004-D, Class ___, having an initial aggregate
Certificate Balance as of December 29, 2004 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 December 29, 2004, among Banc of America Funding Corporation,
as Depositor, Washington Mutual Mortgage Securities Corp., as WMMSC Master
Servicer and Representing Party, Xxxxx Fargo Bank, N.A., as Securities
Administrator and WF Master Servicer, and Wachovia Bank, National Association,
as Trustee. All capitalized terms used herein and not otherwise defined shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferor hereby certifies, represents and warrants to you, as Securities
Administrator, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any
offer to buy or accept a transfer, pledge or other disposition of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security with
any person in any manner, (d) made any general solicitation with respect
to any Transferred Certificate, any interest in a Transferred Certificate
or any other similar security by means of general advertising or in any
other manner, or (e) taken any other action with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security, which (in the case of any of the acts described in
clauses (a) through (e) hereof) would constitute a distribution of the
Transferred Certificates under the Securities Act of 1933, as amended (the
"1933 Act"), would render the disposition of the Transferred Certificates
a violation of Section 5 of the 1933 Act or any state securities laws, or
would require registration or qualification of the Transferred
Certificates pursuant to the 1933 Act or any state securities laws.
Very truly yours,
______________________________________
(Transferor)
By:___________________________________
Name:_________________________________
Title:________________________________
EXHIBIT G-2A
FORM 1 OF TRANSFEREE'S CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2004-D, Class ___, having an initial aggregate
Certificate Balance as of December 29, 2004 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 December 29, 2004, among Banc of America
Funding Corporation, as Depositor, Washington Mutual Mortgage Securities Corp.,
as WMMSC Master Servicer and Representing Party, Xxxxx Fargo Bank, N.A., as
Securities Administrator and WF Master Servicer, and Wachovia Bank, National
Association, as Trustee. All capitalized terms used herein and not otherwise
defined shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferor hereby certifies, represents and warrants to
you, as Securities Administrator, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "1933 Act"), and has
completed one of the forms of certification to that effect attached hereto
as Annex 1 and Annex 2. The Transferee is aware that the sale to it is
being made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of another
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a Qualified Institutional Buyer that purchases
for its own account or for the account of another Qualified Institutional
Buyer to whom notice is given that the resale, pledge or transfer is being
made in reliance on Rule 144A, or (b) pursuant to another exemption from
registration under the 1933 Act.
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement and the Trust created pursuant
thereto, (e) any credit enhancement mechanism associated with the
Transferred Certificate, and (f) all related matters, that it has
requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgment below.
Very truly yours,
______________________________________
(Transferor)
By:___________________________________
Name:_________________________________
Title:________________________________
Nominee Acknowledgment
----------------------
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
______________________________________
(Nominee)
By:___________________________________
Name:_________________________________
Title:________________________________
ANNEX 1 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [__________________] (the
"Transferor") Xxxxx Fargo Bank, N.A., as Securities Administrator with respect
to the mortgage pass-through certificates (the "Transferred Certificates")
described in the Transferee certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended,
because (i) the Transferee owned and/or invested on a discretionary basis
$______________________[1] in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
--------
[1] Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any state, U.S. territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the state or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. bank, and not more than 18 months
preceding such date of sale in the case of a foreign bank or
equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a state or federal authority having supervision over
any such institutions, or is a foreign savings and loan association
or equivalent institute and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. savings and loan association, and
not more than 18 months preceding such date of sale in the case of a
foreign savings and loan association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a state, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency or
instrumentality of the state or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee, (ii) securities that are part
of an unsold allotment to or subscription by the Transferee, if the Transferee
is a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee did not
include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee may be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the
Yes No Transferred Certificates only for the
Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
______________________________________
Print Name of Transferee
By:___________________________________
Name:_________________________________
Title:________________________________
Date:_________________________________
ANNEX 2 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [_________________] (the
"Transferor") Xxxxx Fargo Bank, N.A., as Securities Administrator, with respect
to the mortgage pass-through certificates (the "Transferred Certificates")
described in the Transferee certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A ("Rule 144A") under the Securities Act of 1933, as amended, because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, and (ii) as marked below, the Transferee alone
owned and/or invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Transferee or the Transferee's Family of Investment Companies, the cost
of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis
$____________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $__________________ in securities (other than
the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the
Yes No Transferred Certificates only for the
Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
______________________________________
Print Name of Transferee or Adviser
By:___________________________________
Name:_________________________________
Title:________________________________
IF AN ADVISER:
______________________________________
Print Name of Transferee
By:___________________________________
Sate:_________________________________
EXHIBIT G-2B
FORM 2 OF TRANSFEREE'S CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2004-D, Class ___, having an initial aggregate
Certificate Principal Balance as of December 29, 2004 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 December 29, 2004, among Banc of
America Funding Corporation, as Depositor, Washington Mutual Mortgage Securities
Corp., as WMMSC Master Servicer and Representing Party, Xxxxx Fargo Bank, N.A.,
as Securities Administrator and WF Master Servicer, and Wachovia Bank, National
Association, as Trustee. All capitalized terms used herein and not otherwise
defined shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferor hereby certifies, represents and warrants to
you, as Securities Administrator, that:
1. Transferee is acquiring the Transferred Certificates for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "1933 Act"), or
any applicable state securities laws.
2. Transferee understands that (a) the Transferred Certificates have not
been and will not be registered under the 1933 Act or registered or qualified
under any applicable state securities laws, (b) neither the Depositor nor the
Securities Administrator is obligated so to register or qualify the Transferred
Certificates and (c) neither the Transferred Certificates nor any security
issued in exchange therefor or in lieu thereof may be resold or transferred
unless such resale or transfer is exempt from the registration requirements of
the 1933 Act and any applicable state securities laws or is made in accordance
with the 1933 Act and laws, in which case (i) unless the transfer is made in
reliance on Rule 144A under the 1933 Act, the Securities Administrator or the
Depositor may require a written Opinion of Counsel (which may be in-house
counsel) acceptable to and in form and substance reasonably satisfactory to the
Securities Administrator and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act and such laws or is being made pursuant to the 1933
Act and such laws, which Opinion of Counsel shall not be an expense of the
Securities Administrator or the Depositor and (ii) the Securities Administrator
shall require a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached to the Pooling and Servicing
Agreement as Exhibit G-1 and a certificate from such Certificateholder's
prospective transferee substantially in the form attached to the Pooling and
Servicing Agreement either as Exhibit G-2A or as Exhibit G-2B, which
certificates shall not be an expense of the Securities Administrator or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both.
3. The Transferee understands that it may not sell or otherwise transfer
the Transferred Certificates, any security issued in exchange therefor or in
lieu thereof or any interest in the foregoing except in compliance with the
provisions of Section 6.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A
TRANSACTION EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT
AND IN ACCORDANCE WITH THE PROVISIONS OF THE POOLING AND SERVICING
AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON
BEHALF OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN
INDIVIDUAL RETIREMENT ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR ANY FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A
"PLAN"), MAY RESULT IN "PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF
ERISA, THE CODE OR SIMILAR LAW. TRANSFER OF THIS CERTIFICATE WILL NOT BE
MADE UNLESS THE TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER
(I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE SATISFACTORY TO THE
SECURITIES ADMINISTRATOR, STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON
BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT
SUCH PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF
FUNDS USED TO PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL
ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), 60 FED. REG. 35925 (JULY
12, 1995)), THERE IS NO BENEFIT PLAN WITH RESPECT TO WHICH THE AMOUNT OF
SUCH GENERAL ACCOUNT'S RESERVES AND LIABILITIES FOR THE CONTRACT(S) HELD
BY OR ON BEHALF OF SUCH BENEFIT PLAN AND ALL OTHER BENEFIT PLANS
MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN
SECTION V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS
10% OF THE TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT
(AS SUCH AMOUNTS ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60) AT THE
DATE OF ACQUISITION AND ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL
ACCOUNT ARE PLANS TO WHICH PTE 95-60 APPLIES, OR (II) AN OPINION OF
COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY TO THE SECURITIES
ADMINISTRATOR, 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 SERVICERS, THE REPRESENTING PARTY, 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
(e) above) would constitute a distribution of the Transferred Certificates under
the 1933 Act, would render the disposition of the Transferred Certificates a
violation of Section 5 of the 1933 Act or any state securities law or would
require registration or qualification of the Transferred Certificates pursuant
thereto. The Transferee will not act, nor has it authorized nor will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to the Transferred Certificates, any interest in the Transferred
Certificates or any other similar security.
5. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Transferred Certificates and distributions thereon, (c)
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust created pursuant thereto, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501 (a) under the 1933 Act or an entity
in which all the equity owners come within such paragraphs and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Transferred
Certificates; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
______________________________________
(Transferee)
By:___________________________________
Name:_________________________________
Title:________________________________
Date:_________________________________
Nominee Acknowledgment
----------------------
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
______________________________________
(Nominee)
By:___________________________________
Name:_________________________________
Title:________________________________
EXHIBIT H
FORM OF TRANSFEREE REPRESENTATION LETTER
FOR ERISA RESTRICTED CERTIFICATES
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2004-D, Class ___, having an initial aggregate
Certificate Balance as of December 29, 2004 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 December 29, 2004, among Banc of
America Funding Corporation, as Depositor, Washington Mutual Mortgage Securities
Corp., as WMMSC Master Servicer and Representing Party, Xxxxx Fargo Bank, N.A.,
as Securities Administrator and WF Master Servicer, and Wachovia Bank, National
Association, as Trustee. All capitalized terms used herein and not otherwise
defined shall have the respective meanings set forth in the Pooling and
Servicing Agreement.
The Transferee hereby certifies, represents and warrants to you, as
Securities Administrator, either that:
(a) it is not, and is not acting on behalf of, an employee benefit plan or
arrangement, including an individual retirement account, subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), the Internal
Revenue Code of 1986, as amended (the "Code"), or any federal, state or local
law ("Similar Law") which is similar to ERISA or the Code (collectively, a
"Plan"), and it is not using the assets of any such Plan to effect the purchase
of the Transferred Certificates; or
(b) it is an insurance company and the source of funds used to purchase
the Transferred Certificates is an "insurance company general account" (as
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTE
95-60"), 60 Fed. Reg. 35925 (July 12, 1995)), there is no Plan with respect to
which the amount of such general account's reserves and liabilities for the
contract(s) held by or on behalf of such Plan and all other Plans maintained by
the same employer (or affiliate thereof as defined in Section V(a)(1) of PTE
95-60) or by the same employee organization exceeds 10% of the total of all
sreserves and liabilities of such general account (as such amounts are
determined under Section I(a) of PTE 95-60) at the date of acquisition and all
Plans that have an interest in such general account are Plans to which PTE 95-60
applies.
Capitalized terms used in and not otherwise defined herein shall have the
meaning assigned to them in the Pooling and Servicing Agreement.
Very truly yours,
______________________________________
(Transferee)
By:___________________________________
Name:_________________________________
Title:________________________________
Date:_________________________________
EXHIBIT I
FORM OF AFFIDAVIT REGARDING TRANSFER OF
RESIDUAL CERTIFICATE PURSUANT TO SECTION 6.02
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2004-D
STATE OF )
) ss:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of _______________________________, the
proposed transferee (the "Transferee") of the Class [1-A-R][1-A-LR] Certificate
(the "Residual Certificate") issued pursuant to the Pooling and Servicing
Agreement, dated December 29, 2004, among Banc of America Funding Corporation,
as Depositor, Washington Mutual Mortgage Securities Corp., as WMMSC Master
Servicer and Representing Party, Xxxxx Fargo Bank, N.A., as Securities
Administrator and WF Master Servicer, and Wachovia Bank, National Association,
as Trustee. Capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Agreement. The Transferee has authorized
the undersigned to make this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the date
of the transfer, a Permitted Transferee. The Transferee is acquiring the
Residual Certificate either (i) for its own account or (ii) as nominee, trustee
or agent for another Person who is a Permitted Transferee and has attached
hereto an affidavit from such Person in substantially the same form as this
affidavit. The Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax will
be imposed on Transfers of the Residual Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will be
imposed on a "pass-through entity" holding the Certificate if at any time during
the taxable year of the pass-through entity a Person that is not a Permitted
Transferee is the record Holder of an interest in such entity. The Transferee
understands that, other than in the case of an "electing large partnership"
under Section 775 of the Code, such tax will not be imposed for any period with
respect to which the record Holder furnishes to the pass-through entity an
affidavit that such record Holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 6.02 of the
Agreement and understands the legal consequences of the acquisition of the
Residual Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 6.02 of the Agreement and the restrictions noted on
the face of the Certificate. The Transferee understands and agrees that any
breach of any of the representations included herein shall render the transfer
to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a transfer affidavit in the form of
this Affidavit from any Person to whom the Transferee attempts to transfer the
Residual Certificate, and in connection with any transfer by a Person for whom
the Transferee is acting as nominee, trustee or agent, and the Transferee will
not transfer the Residual Certificate or cause the Residual Certificate to be
transferred to any Person that the Transferee knows is not a Permitted
Transferee.
7. The Transferee historically has paid its debts as they have become due.
8. The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the Residual
Certificate.
9. The taxpayer identification number of the Transferee's nominee is
___________.
10. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
11. The Transferee is aware that the Residual Certificate may be a
"noneconomic residual interest" within the meaning of Treasury Regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
12. The Transferee will not cause income from the Residual Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other U.S.
Person.
13. If the Transferee is purchasing the Residual Certificate in a transfer
intended to meet the safe harbor provisions of Treasury Regulations Sections
1.860E-1(c), the Transferee has executed and attached Attachment A hereto.
14. The Transferee is not an employee benefit plan or arrangement,
including an individual retirement account, subject to ERISA, the Code or any
federal, state or local law which is similar to ERISA or the Code, and the
Transferee is not acting on behalf of such a plan or arrangement.
* * *
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer this _____ day of ________________, ____.
______________________________________
Print Name of Transferee
By:___________________________________
Name:
Title:
Personally appeared before me the above-named ___________________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the _______________________ of the Transferee, and
acknowledged that he executed the same as his free act and deed and the free act
and deed of the Transferee.
Subscribed and sworn before me this _____ day of __________________, ____
_____________________________________
NOTARY PUBLIC
My Commission expires the ____ day of
______________, ____
ATTACHMENT A
to
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4) OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, AND FOR NON-ERISA INVESTORS
Check the appropriate box:
The consideration paid to the Transferee to acquire the Residual
Certificate equals or exceeds the excess of (a) the present value of the
anticipated tax liabilities over (b) the present value of the anticipated
savings associated with holding such Residual Certificate, in each case
calculated in accordance with U.S. Treasury Regulations Sections
1.860E-1(c)(7) and (8), computing present values using a discount rate
equal to the short-term Federal rate prescribed by Section 1274(d) of the
Code and the compounding period used by the Transferee.
OR
--
|_| The transfer of the Residual Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly:
(i) the Transferee is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income
from Residual Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the Transferee's
two fiscal years preceding the year of the transfer, the Transferee
had gross assets for financial reporting purposes (excluding any
obligation of a person related to the Transferee within the meaning
of U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess
of $100 million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Residual Certificate only to
another "eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that
satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii) and
(iii) and Section 1.860E-1(c)(5) of the U.S. Treasury Regulations;
(iv) the Transferee has determined the consideration paid to it to
acquire the Residual Certificate based on reasonable market
assumptions (including, but not limited to, borrowing and investment
rates, prepayment and loss assumptions, expense and reinvestment
assumptions, tax rates and other factors specific to the Transferee)
that it has determined in good faith; and
(v) in the event of any transfer of the Residual Certificate by the
Transferee, the Transferee will require its transferee to complete a
representation in the form of this Attachment A as a condition of
such transferee's purchase of the Residual Certificate.
EXHIBIT J
[Reserved]
EXHIBIT K
[Reserved]
EXHIBIT L
LIST OF RECORDATION STATES
Florida
Maryland
EXHIBIT M
FORM OF INITIAL CERTIFICATION OF THE [TRUSTEE][CUSTODIAN]
December 29, 0000
Xxxx xx Xxxxxxx Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: BAFC 2004-D
Washington Mutual Mortgage Securities Corp.
000 Xxxxx Xxxxxxxxx Xxx (XXX0X00)
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Master Servicer
Re: The Pooling and Servicing Agreement, dated December 29, 2004 (the
"Pooling and Servicing Agreement"), among the Depositor, Washington
Mutual Mortgage Securities Corp., as a master servicer and
representing party, Xxxxx Fargo Bank, N.A., as securities
administrator and a master servicer and Wachovia Bank, National
Association, as trustee [and the Custodial Agreement dated December
29, 2004, among the Depositor, Washington Mutual Mortgage Securities
Corp., Wachovia Bank, National Association and U.S. Bank National
Association, as Custodian (the "Custodian") (the "Custodial
Agreement")]
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the Pooling and
Servicing Agreement [and Section 2.3 of the Custodial Agreement], the
undersigned, as [Trustee][Custodian], hereby certifies that, without having made
the review requested to be made within 90 days pursuant to Section 2.02 of the
Pooling and Servicing Agreement and except as specified in the list of
exceptions attached hereto as Exhibit A, it has in its possession, for the
benefit of the Certificateholders, the original Mortgage Note relating to each
of the [WF Master Serviced Loan][WMMSC Master Serviced Loans] identified on the
Mortgage Loan Schedule.
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.
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Pooling and Servicing Agreement.
[SIGNATURE PAGE FOLLOWS ON NEXT PAGE]
[___________________________________],
as [Trustee][Custodian]
By:___________________________________
Name:_________________________________
Title:________________________________
Exhibit A
---------
List of Exceptions
------------------
[To be Completed by the [Trustee][Custodian]]
EXHIBIT N
FORM OF FINAL CERTIFICATION OF THE [TRUSTEE][CUSTODIAN]
[__________ __, ____]
Banc of America Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: BAFC 2004-D
Washington Mutual Mortgage Securities Corp.
000 Xxxxx Xxxxxxxxx Xxx (XXX0X00)
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Master Servicer
Re: The Pooling and Servicing Agreement, dated December 29, 2004 (the
"Pooling and Servicing Agreement"), among the Depositor, Washington
Mutual Mortgage Securities Corp., as a master servicer and
representing party, Xxxxx Fargo Bank, N.A., as securities
administrator and a master servicer and Wachovia Bank, National
Association, as trustee [and the Custodial Agreement dated December
29, 2004, among the Depositor, Washington Mutual Mortgage Securities
Corp., Wachovia Bank, National Association and U.S. Bank National
Association, as Custodian (the "Custodian") (the "Custodial
Agreement")]
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the Pooling and
Servicing Agreement [and Section 2.3 of the Custodial Agreement], the
undersigned, as [Trustee][Custodian], hereby certifies that as to each of the
[WF Master Serviced Loans][WMMSC Master Serviced Loans] listed in the Mortgage
Loan Schedule, except as specified in the list of exceptions attached hereto as
Exhibit A, 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.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
[SIGNATURE PAGE FOLLOWS ON NEXT PAGE]
[___________________________________],
as [Trustee][Custodian]
By:___________________________________
Name:_________________________________
Title:________________________________
Exhibit A
---------
List of Exceptions
------------------
[TO BE COMPLETED BY [TRUSTEE][CUSTODIAN]]
EXHIBIT O
Form of Xxxxxxxx-Xxxxx Certification
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2004-D
I, [________], a [_____________] of Banc of America Funding Corporation,
certify that:
1. I have reviewed the annual report on Form 10-K, and all Monthly Form 8-K's
containing Distribution Date Statements filed in respect of periods
included in the year covered by this annual report, of the Banc of America
Funding 2004-D Trust;
2. Based on my knowledge, the information in these reports, taken as a whole,
does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
the last day of the period covered by this annual report;
3. Based on my knowledge, the distribution or servicing information required
to be provided to the Securities Administrator by each Master Servicer
under the Pooling and Servicing Agreement, dated December 29, 2004, among
Banc of America Funding Corporation, as Depositor, Washington Mutual
Mortgage Securities Corp., as WMMSC Master Servicer and Representing
Party, Xxxxx Fargo Bank, N.A., as Securities Administrator and WF Master
Servicer, and Wachovia Bank, National Association, as Trustee, for
inclusion in these reports is included in these reports;
4. Based on my knowledge and upon the annual compliance statements included
in the report and required to be delivered by the Master Servicers to the
Securities Administrator in accordance with the terms of the Pooling
Agreement, and except as disclosed in the reports, each Master Servicer
has fulfilled its obligations under the Pooling Agreement; and
5. The reports disclose all significant deficiencies relating to the each
Servicer's and the WMMSC Master Servicer's compliance with the minimum
servicing standards based upon the reports provided by independent public
accountants after conducting reviews in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or similar procedure as set forth
in the Pooling Agreement that are included in these reports.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: Xxxxx Fargo
Bank, N.A. and Washington Mutual Mortgage Securities Corp.
By:_____________________________________
Name:
Title:
EXHIBIT P
Form of Certification to be Provided by the Securities Administrator
to the Depositor
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2004-D
The Securities Administrator hereby certifies to the Depositor and its
officers, directors and affiliates, and with the knowledge and intent that they
will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the calendar year [___]
and the Monthly Form 8-K's containing the Distribution Date Statements
filed in respect of periods included in the year covered by such annual
report;
2. Based on my knowledge, the distribution information in the Distribution
Date Statements contained in the Monthly Form 8-K's included in the year
covered by the annual report on Form 10-K for the calendar year [___],
taken as a whole, does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not
misleading as of the last day of the period covered by that annual report;
and
3. Based on my knowledge, the distribution or servicing information required
to be provided by the Securities Administrator under the Pooling and
Servicing Agreement, dated December 29, 2004, among Banc of America
Funding Corporation, as Depositor, Washington Mutual Mortgage Securities
Corp., as WMMSC Master Servicer and Representing Party, Xxxxx Fargo Bank,
N.A., as Securities Administrator and WF Master Servicer, and Wachovia
Bank, National Association, as Trustee, for inclusion in these reports is
included in these reports.
XXXXX FARGO BANK, N.A.
as Securities Administrator
By:______________________________________
Name:
Title:
EXHIBIT Q
Form of Certification to be Provided by the WMMSC Master Servicer to the
Depositor
Banc of America Funding Corporation, Mortgage Pass-Through Certificates,
Series 2004-D
I, [name of certifying individual], a duly elected and acting
officer of Washington Mutual Mortgage Securities Corp. (the "WMMSC Master
Servicer"), certify pursuant to Section 3.20(d) of the Pooling Agreement to the
Depositor and the Trustee and each Person, if any, who "controls" the Depositor
or the Trustee within the meaning of the Securities Act of 1933, as amended, and
their respective officers and directors, with respect to the calendar year
immediately preceding the date of this Certificate (the "Relevant Year"), as
follows:
1. For purposes of this Certificate, "Relevant Information" means
the information in the certificate provided pursuant to Section 3.13 of the
Pooling Agreement (the "Annual Compliance Certificate") for the Relevant Year
and the information in all servicing reports required pursuant to the Pooling
Agreement to be provided by the WMMSC Master Servicer to the Trustee during the
Relevant Year. Based on my knowledge, the Relevant Information, taken as a
whole, does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made therein, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the Relevant Year.
2. The Relevant Information has been provided to those Persons
entitled to receive it.
3. I am responsible for reviewing the activities performed by the
WMMSC Master Servicer under the Pooling Agreement during the Relevant Year.
Based upon the review required by the Pooling Agreement and except as disclosed
in the Annual Compliance Certificate or the accountants' statement provided
pursuant to Section 3.15 of the Pooling Agreement, to the best of my knowledge,
the WMMSC Master Servicer has fulfilled its obligations under the Pooling
Agreement throughout the Relevant Year.
Capitalized terms used but not defined herein have the meanings
ascribed to them in the Pooling and Servicing Agreement, dated December 29,
2004, among Banc of America Funding Corporation, as Depositor, Washington Mutual
Mortgage Securities Corp., as WMMSC Master Servicer and Representing Party,
Xxxxx Fargo Bank, N.A., as Securities Administrator and WF Master Servicer, and
Wachovia Bank, National Association, as Trustee.
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.,
as WMMSC Master Servicer
_______________________________________
Name:
Title:
Dated:
EXHIBIT R
Form of Certification to be Provided by the WF Master Servicer to the
Depositor
Banc of America Funding Corporation, Mortgage Pass-Through Certificates,
Series 2004-D
I, [________], a [_____________] of Xxxxx Fargo Bank, N.A. (the "WF Master
Servicer"), certify that:
1. I have reviewed the annual report on Form 10-K, and all Monthly Form 8-K's
containing Distribution Date Statements filed in respect of periods
included in the year covered by this annual report, of the Banc of America
Funding 2004-D Trust (the "Trust");
2. Based on my knowledge, the information in these reports, taken as a whole,
does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
the last day of the period covered by this annual report;
3. Based on my knowledge, the distribution or servicing information required
to be provided to the Securities Administrator by the WF Master Servicer
under the Pooling and Servicing Agreement, dated December 29, 2004 (the
"Agreement"), among Banc of America Funding Corporation, as Depositor,
Washington Mutual Mortgage Securities Corp., as WMMSC Master Servicer and
Representing Party, Xxxxx Fargo Bank, N.A., as Securities Administrator
and WF Master Servicer, and Wachovia Bank, National Association, as
trustee, for inclusion in these reports is included in these reports; and
4. I am responsible for reviewing the activities performed by the WF Master
Servicer under the Agreement and based upon my knowledge and the annual
compliance review required under the Agreement, and except as disclosed in
the reports, the WF Master Servicer has fulfilled its obligations under
the Agreement.
XXXXX FARGO BANK, N.A.
By:_____________________________________
Name:
Title:
EXHIBIT S
Form of Custodial Agreement
CUSTODIAL AGREEMENT
-------------------
THIS CUSTODIAL AGREEMENT (as amended and supplemented from time to
time, the "Agreement"), dated December 29, 2004, by and among WACHOVIA BANK,
NATIONAL ASSOCIATION, not individually, but solely as Trustee (including its
successors under the Pooling Agreement defined below, the "Trustee"), BANC OF
AMERICA FUNDING CORPORATION (together with any successor in interest, the
"Depositor"), WASHINGTON MUTUAL MORTGAGE SECURITIES CORP. (together with any
successor in interest or successor under the Pooling Agreement referred to
below, the "Master Servicer" or the "Representing Party") and U.S. BANK,
NATIONAL ASSOCIATION (together with any successor in interest or any successor
appointed hereunder, the "Custodian").
W I T N E S S E T H T H A T
- - - - - - - - - - - - - -
WHEREAS, the Depositor, the Master Servicer, the Trustee, the
Representing Party, and Xxxxx Fargo Bank, N.A., as securities administrator and
master servicer, have entered into a Pooling Agreement dated December 29, 2004
relating to the issuance of Mortgage Pass-Through Certificates, Series 2004-D
(as amended and supplemented from time to time, the "Pooling Agreement"); and
WHEREAS, the Custodian has agreed to act as agent for the Trustee
for the purposes of receiving and holding certain documents and other
instruments delivered by the Depositor under the Pooling Agreement, all upon the
terms and conditions and subject to the limitations hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the Trustee, the Depositor, the
Master Servicer and the Custodian hereby agree as follows:
ARTICLE I
Definitions
Capitalized terms used in this Agreement and not defined herein
shall have the meanings assigned in the Pooling Agreement, unless otherwise
required by the context herein.
ARTICLE II
Custody of Mortgage Documents
Section 2.1. Custodian to Act as Agent; Acceptance of Custodial
Files. Subject to Section 2.3 hereof, the Custodian, as the duly appointed agent
of the Trustee for these purposes, declares that it holds and will hold the
documents delivered to it pursuant to Section 2.01 of the Pooling Agreement and
any other documents constituting part of the Mortgage File received on or
subsequent to the date hereof (the "Custodial Files") as agent for the Trustee,
in trust, for the use and benefit of all present and future Certificateholders.
Section 2.2. Recordation of Assignments. Unless an assignment of a
Mortgage is not required to be recorded in accordance with Section 2.01 of the
Pooling Agreement, if any Custodial File includes one or more assignments to the
Trustee of Mortgage Notes and related Mortgages that have not been recorded,
each such assignment shall be delivered by the Custodian to the Master Servicer
for the purpose of recording it in the appropriate public office for real
property records, and the Master Servicer, at no expense to the Custodian, shall
promptly cause to be recorded in the appropriate public office for real property
records each such assignment and, upon receipt thereof from such public office,
shall return each such assignment to the Custodian.
Section 2.3. Review of Custodial Files. The Custodian agrees, for
the benefit of Certificateholders, to review, in accordance with the provisions
of Section 2.02 of the Pooling Agreement, each Custodial File and to provide the
initial and final certifications in the forms of Exhibits M and N to the Pooling
Agreement in accordance with the provisions thereof. If in performing the review
required by this Section 2.3 the Custodian finds any document or documents
constituting a part of a Custodial File to be missing or defective, the
Custodian shall follow the procedures specified in the Pooling Agreement. The
Custodian shall provide to the Trustee upon request an electronic list of
outstanding exceptions in connection with the initial and final Certification.
Section 2.4. Notification of Breaches of Representations and
Warranties. Upon discovery by the Custodian of a breach of any representation or
warranty made by the Depositor or the Representing Party as set forth in the
Pooling Agreement, the Custodian shall follow the procedures specified in the
Pooling Agreement.
Section 2.5. Custodian to Cooperate; Release of Custodial Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the Master
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Master Servicer shall immediately deliver to
the Custodian two copies of a Request for Release or such request in an
electronic format acceptable to the Custodian and shall request delivery to it
of the Custodial File. The Custodian agrees, within five business days of
receipt of such Request for Release, to release the related Custodial File to
the Master Servicer.
From time to time as is appropriate for the servicing or foreclosure
of any Mortgage Loan, including for this purpose, collection under any Primary
Mortgage Insurance Policy, the Master Servicer shall deliver to the Custodian
two copies of a Request for Release of a Master Servicing Officer requesting
that possession of the Custodial File be released to the Master Servicer and
certifying as to the reason for such release. Upon receipt of the foregoing, the
Custodian shall deliver the Custodial File to the Master Servicer. The Master
Servicer shall cause each Custodial File therein so released to be returned to
the Custodian when the need therefor by the Master Servicer no longer exists,
unless (i) the Mortgage Loan has been liquidated and the Liquidation Proceeds
relating to the Mortgage Loan have been deposited in the Certificate Account to
the extent required by the Pooling Agreement or (ii) the Custodial File or such
document has been delivered to an attorney, or to a public trustee or other
public official as required by law, for purposes of initiating or pursuing legal
action or other proceedings for the foreclosure of the Mortgaged Property either
judicially or non-judicially. In the event of the liquidation of a Mortgage
Loan, the Master Servicer shall deliver two copies of a Request for Release with
respect thereto to the Custodian upon deposit of the related Liquidation
Proceeds in the Certificate Account to the extent required by the Pooling
Agreement.
Section 2.6. Assumption Agreements. In the event that any assumption
agreement or substitution of liability agreement is entered into with respect to
any Mortgage Loan subject to this Agreement in accordance with the terms and
provisions of the Pooling Agreement, the Master Servicer shall notify the
Custodian that such assumption or substitution agreement has been completed by
forwarding to the Custodian the original of such assumption or substitution
agreement, which copy shall be added to the related Custodial File and, for all
purposes, shall be considered a part of such Custodial File to the same extent
as all other documents and instruments constituting parts thereof.
ARTICLE III
Concerning the Custodian
Section 3.1. Custodian a Bailee and Agent of the Trustee. With
respect to each Mortgage Note, Mortgage and other documents constituting each
Custodial File which are delivered to the Custodian, the Custodian is
exclusively the bailee and agent of the Trustee, holds such documents for the
benefit of Certificateholders and undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement and in the Pooling
Agreement. All provisions of the Pooling Agreement setting forth duties of the
Custodian in more detail are hereby incorporated by reference into this
Agreement. Except upon compliance with the provisions of Section 2.5 of this
Agreement and the provisions of the Pooling Agreement, no Mortgage Note,
Mortgage or other document constituting a part of a Custodial File shall be
delivered by the Custodian to the Depositor or the Master Servicer or otherwise
released from the possession of the Custodian.
Section 3.2. Indemnification. The Master Servicer hereby agrees to
indemnify and hold the Custodian harmless from and against all claims,
liabilities, losses, actions, suits or proceedings at law or in equity, or any
other expenses, fees or charges of any character or nature, which the Custodian
may incur or with which the Custodian may be threatened by reasons of its acting
as custodian under this Agreement, including indemnification of the Custodian
against any and all expenses, including attorney's fees if counsel for the
Custodian has been approved by the Master Servicer, and the cost of defending
any action, suit or proceedings or resisting any claim; provided, however, that
if the Trustee has removed the Custodian in accordance with Section 3.5, the
Trustee and not the Master Servicer shall bear the foregoing indemnification
provisions. Notwithstanding the foregoing, it is specifically understood and
agreed that in the event any such claim, liability, loss, action, suit or
proceeding or other expense, fees, or charge shall have been caused by reason of
any grossly negligent act, grossly negligent failure to act, or willful
misconduct on the part of the Custodian, or which shall constitute a willful
breach of its duties hereunder, or by any act of the Depositor or the Trustee,
the indemnification provisions of this Agreement shall not apply.
Section 3.3. Custodian May Own Certificates. The Custodian in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights it would have if it were not Custodian.
Section 3.4. Master Servicer to Pay Custodian's Fees and Expenses.
The Master Servicer covenants and agrees to pay to the Custodian from time to
time, and the Custodian shall be entitled to, reasonable compensation for all
services rendered by it in the exercise and performance of any of the powers and
duties hereunder of the Custodian, and the Master Servicer will pay or reimburse
the Custodian upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Custodian in accordance with any of the
provisions of this Agreement (including the reasonable compensation and the
expenses and disbursements of its counsel and of all persons not regularly in
its employ), except any such expense, disbursement or advance as may arise from
its negligence or bad faith; provided, however, that if the Trustee has removed
the Custodian in accordance with Section 3.5, the Trustee and not the Master
Servicer shall bear the foregoing compensation obligations.
Section 3.5. Custodian May Resign; Trustee May Remove Custodian. The
Custodian may resign from the obligations and duties hereby imposed upon it as
such obligations and duties relate to its acting as Custodian of the Mortgage
Loans. Upon receiving such notice of resignation, the Trustee shall either take
custody of the Custodial Files itself and give prompt notice thereof to the
Depositor, the Master Servicer and the Custodian or promptly appoint a successor
Custodian by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Custodian and one copy to the successor
Custodian. If the Trustee shall not have taken custody of the Custodial Files
and no successor Custodian shall have been so appointed and have accepted
resignation, the resigning Custodian may petition any court of competent
jurisdiction for the appointment of a successor Custodian.
The Trustee, upon 60 days written notice, may remove the Custodian.
In such event, the Trustee shall appoint, or petition a court of competent
jurisdiction to appoint, a successor Custodian hereunder. Any successor
Custodian shall be a depository institution subject to supervision or
examination by federal or state authority and shall be able to satisfy the other
requirements contained in Section 3.7.
Any resignation or removal of the Custodian and appointment of a
successor Custodian pursuant to any of the provisions of this Section 3.5 shall
become effective upon acceptance of appointment by the successor Custodian. The
Trustee shall give prompt notice to the Depositor and the Master Servicer of the
appointment of any successor Custodian. No successor Custodian shall have been
appointed and accepted appointment by the Trustee without the prior approval of
the Depositor and the Master Servicer. Upon the appointment of a successor
Custodian, the Master Servicer may make such arrangements for the compensation
of such successor as it and such successor shall agree, provided however that
such compensations shall not exceed the compensation payable to the Custodian
hereunder.
Section 3.6. Merger or Consolidation of Custodian. Any Person into
which the Custodian may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Custodian shall be a party, or any Person succeeding
to the business of the Custodian, shall be the successor of the Custodian
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.
Section 3.7. Representations of the Custodian. The Custodian hereby
represents that it is a depository institution subject to supervision or
examination by a federal or state authority, has a combined capital and surplus
of at least $10,000,000 and is qualified to do business in the jurisdiction in
which it will hold any Custodial File.
ARTICLE IV
Miscellaneous Provisions
Section 4.1. Notices. All notices, requests, consents and demands
and other communications required under this Agreement or pursuant to any other
instrument or document delivered hereunder shall be in writing and, unless
otherwise specifically provided, may be delivered personally, by telegram or
telex, or by registered or certified mail, postage prepaid, return receipt
requested, at the addresses specified on the signature page hereof (unless
changed by the particular party whose address is stated herein by similar notice
in writing), in which case the notice will be deemed delivered when received.
Section 4.2. Amendments. No modification or amendment of or
supplement to this Agreement shall be valid or effective unless the same is in
writing and signed by all parties hereto, and neither the Depositor, the Master
Servicer nor the Trustee shall enter into any amendment hereof except as
permitted by the Pooling Agreement. The Trustee shall give prompt written notice
to the Custodian of any amendment or supplement to the Pooling Agreement and
furnish the Custodian with written copies thereof.
Section 4.3. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT APPLICATION OF THE
CONFLICTS OF LAWS PROVISIONS THEREOF, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 4.4. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages are
situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Master Servicer and at its expense on
direction by the Trustee, but only upon direction accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of the 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 4.5. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
Section 4.6 Limitations on the Responsibilities of the Custodian.
1. Except as provided in this Agreement (including references made
herein to the Pooling Agreement), the Custodian shall be under no duty or
obligation to inspect, review or examine the Mortgage Files to determine that
the contents thereof are appropriate for the represented purpose or that they
have been actually recorded or that they are other than what they purport to be
on their face.
2. Any other provision of this Agreement to the contrary
notwithstanding, the Custodian shall have no notice, and shall not be bound by
any of the terms and conditions of any other document or agreement executed or
delivered in connection with, or intended to control any part of, the
transactions anticipated by or referred to in this Agreement unless the
Custodian is a signatory party to that document or agreement. Notwithstanding
the foregoing sentence, the Custodian shall be deemed to have notice of the
terms and conditions (including without limitation definitions not otherwise set
forth in full in this Agreement) of other documents and agreements executed or
delivered in connection with, or intended to control any part of, the
transactions anticipated by or referred to in this Agreement, and shall be bound
by any such terms and conditions to the extent such terms and conditions are
referenced, or are incorporated by reference, into this Agreement.
3. Nothing in this Agreement shall be deemed to impose on the
Custodian any duty to qualify to do business in any jurisdiction, other than (i)
any jurisdiction where any Custodial File is or may be held by the Custodian
from time to time hereunder, and (ii) any jurisdiction where its ownership of
property or conduct of business requires such qualification and where failure to
qualify could have a material adverse effect (a) on the Custodian or its
property or business or (b) on the ability of the Custodian to perform any of
its duties under this Agreement.
IN WITNESS WHEREOF, this Agreement is executed the date first above
written.
Address: WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 By:
--------------------------------------
Name:
Title:
Address: BANC OF AMERICA FUNDING CORPORATION,
as Depositor
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 By:
--------------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President
Address: WASHINGTON MUTUAL MORTGAGE SECURITIES
CORP., as Master Servicer
000 Xxxxx Xxxxxxxxx Xxxxxx (XXX0X00)
Xxxxxx Xxxxx, Xxxxxxxx 00000 By:
--------------------------------------
Name:
Title:
Address: U.S. BANK, NATIONAL ASSOCIATION,
as Custodian
0000 Xxxxxx Xxxxxx
EP-NM-TMDZ By:
Xx. Xxxx, Xxxxxxxxx 00000 --------------------------------------
Name:
Title:
STATE OF NORTH CAROLINA )
ss.:
COUNTY OF MECKLENBURG )
On the 29th day of December, 2004, before me, a notary public in and
for the State of North Carolina, personally appeared Xxxxx Xxxxx, known to me
who, being by me duly sworn, did depose and say that he is a Senior Vice
President of Banc of America Funding Corporation, a Delaware corporation, one of
the parties that executed the foregoing instrument; and that he signed his name
thereto by order of the Board of Directors of such corporation.
_________________________
Notary Public
[NOTARIAL SEAL]
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
)
On the 29th day of December, 2004, before me, a notary public in and for the
State of North Carolina, personally appeared __________________, known to me
who, being by me duly sworn, did depose and say that s/he is a _______________
of Wachovia Bank, National Association, a national banking association, one of
the parties that executed the foregoing instrument; and that s/he signed his/her
name thereto by order of the Board of Directors of such association.
_________________________
Notary Public
[NOTARIAL SEAL]
STATE OF )
ss.:
COUNTY OF )
On the 29th day of December, 2004, before me, a notary public in and
for the State of _____________, personally appeared _________________, known to
me who, being by me duly sworn, did depose and say that s/he is a
_______________of Washington Mutual Mortgage Securities Corp., a Delaware
corporation, one of the parties that executed the foregoing instrument; and that
s/he signed his/her name thereto by order of the Board of Directors of such
corporation.
_________________________
Notary Public
[NOTARIAL SEAL]
STATE OF )
ss.:
COUNTY OF )
On the 29th day of December, 2004, before me, a notary public in and
for the State of ________________, personally appeared _________________, known
to me who, being by me duly sworn, did depose and say that s/he is a
_______________of U.S. Bank National Association, a national banking
association, one of the parties that executed the foregoing instrument; and that
s/he signed his/her name thereto by order of the Board of Directors of such
association.
_________________________
Notary Public
[NOTARIAL SEAL]
EXHIBIT T
Excerpt of Standard & Poor's LEVELS(R) Glossary,
Version 5.6 Revised, Appendix E
I. "High-Cost Loan" Categorization
Category under Applicable
-------------------------
State/Jurisdiction Anti-Predatory Lending Law
------------------ --------------------------
--------------------------------------------------------------------------
Arkansas High Cost Home Loan
--------------------------------------------------------------------------
Cleveland Heights, OH Covered Loan
--------------------------------------------------------------------------
Colorado Covered Loan
--------------------------------------------------------------------------
Connecticut High Cost Home Loan
--------------------------------------------------------------------------
District of Columbia Covered Loan
--------------------------------------------------------------------------
Florida High Cost Home Loan
--------------------------------------------------------------------------
Georgia (Oct 1, 2002 - Mar 6, 2003) High Cost Home Loan
--------------------------------------------------------------------------
Georgia as amended (Mar 7, 2003 - High Cost Home Loan
current)
--------------------------------------------------------------------------
HOEPA Section 32 High Cost Loan
--------------------------------------------------------------------------
Illinois High Risk Home Loan
--------------------------------------------------------------------------
Kansas High Loan to Value Consumer Loan
and;
--------------------------------------------------------------------------
High APR Consumer Loan
--------------------------------------------------------------------------
Kentucky High Cost Home Loan
--------------------------------------------------------------------------
Los Angeles, CA High Cost Refinance Home Loan
--------------------------------------------------------------------------
Maine High Rate High Fee Mortgage
--------------------------------------------------------------------------
Massachusetts High Cost Home Loan
--------------------------------------------------------------------------
Nevada Home Loan
--------------------------------------------------------------------------
New Jersey High Cost Home Loan
--------------------------------------------------------------------------
New York High Cost Home Loan
--------------------------------------------------------------------------
New Mexico High Cost Home Loan
--------------------------------------------------------------------------
North Carolina High Cost Home Loan
--------------------------------------------------------------------------
Oakland, CA High Cost Home Loan
--------------------------------------------------------------------------
Ohio Covered Loan
--------------------------------------------------------------------------
Oklahoma Subsection 10 Mortgage
--------------------------------------------------------------------------
South Carolina High Cost Home Loan
--------------------------------------------------------------------------
West Virginia West Virginia Mortgage Loan Act
Loan
--------------------------------------------------------------------------
II. "Covered Loan" Categorization
Category under Applicable
-------------------------
State/Jurisdiction Anti-Predatory Lending Law
------------------ --------------------------
--------------------------------------------------------------------------
Georgia (Oct 1, 2002 - Mar 6, 2003) Covered Loan
--------------------------------------------------------------------------
New Jersey Covered Home Loan
--------------------------------------------------------------------------
