EXHIBIT 4
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XXXX XX XXXXXXX FUNDING CORPORATION,
as Depositor,
BANK OF AMERICA, N.A.,
as Servicer,
XXXXX FARGO BANK, N.A.,
as Servicer,
XXXXX FARGO BANK, N.A.,
as Securities Administrator
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated August 27, 2004
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Mortgage Pass-Through Certificates
Series 2004-A
==============================================================================
TABLE OF CONTENTS
PRELIMINARY STATEMENT.....................................................
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms...............................................
Section 1.02 Interest Calculations.......................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans................................
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.............
Section 2.03 Representations, Warranties and Covenants of the
Servicers..................................................
Section 2.04 Representations and Warranties of the Depositor as to the
Mortgage Loans.............................................
Section 2.05 Designation of Interests in the REMICs......................
Section 2.06 Designation of Start-up Day.................................
Section 2.07 REMIC Certificate Maturity Date.............................
Section 2.08 Execution and Delivery of Certificates......................
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicers to Service Mortgage Loans.........................
Section 3.02 Subservicing; Enforcement of the Obligations of the
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 Servicers....................
Section 3.07 Securities Administrator or Trustee to Act as Servicer......
Section 3.08 Collection of Mortgage Loan Payments; Servicer Custodial
Accounts and Certificate Account...........................
Section 3.09 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts............................................
Section 3.10 Access to Certain Documentation and Information Regarding
the Mortgage Loans.........................................
Section 3.11 Permitted Withdrawals from the Servicer Custodial
Accounts and Certificate Account...........................
Section 3.12 Maintenance of Hazard Insurance.............................
Section 3.13 Enforcement of Due-On-Sale Clauses; Assumption Agreements...
Section 3.14 Realization Upon Defaulted Mortgage Loans; REO Property.....
Section 3.15 Trustee to Cooperate; Release of Owner Mortgage Files and
Retained Mortgage Files....................................
Section 3.16 Documents, Records and Funds in Possession of the
Servicers to be Held for the Trustee.......................
Section 3.17 Servicing Compensation......................................
Section 3.18 Annual Statement as to Compliance...........................
Section 3.19 Annual Independent Public Accountants' Servicing
Statement; Financial Statements............................
Section 3.20 Advances....................................................
Section 3.21 Modifications, Waivers, Amendments and Consents.............
Section 3.22 Reports to the Securities and Exchange Commission...........
Section 3.23 Buy-Down Account; Application of Buy-Down Funds.............
ARTICLE IV
SERVICER'S CERTIFICATE
Section 4.01 Servicer's Certificate......................................
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01 Distributions...............................................
Section 5.02 Priorities of Distributions.................................
Section 5.03 Allocation of Losses........................................
Section 5.04 Statements to Certificateholders............................
Section 5.05 Tax Returns and Reports to Certificateholders...............
Section 5.06 Tax Matters Person..........................................
Section 5.07 Rights of 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 SERVICERS
Section 7.01 Respective Liabilities of the Depositor and the Servicers....
Section 7.02 Merger or Consolidation of the Depositor or a Servicer.......
Section 7.03 Limitation on Liability of the Depositor, the Servicers
and Others.................................................
Section 7.04 Depositor and Servicers Not to Resign.......................
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default...........................................
Section 8.02 Remedies of Trustee.........................................
Section 8.03 Directions by Certificateholders and Duties of Trustee
During Event of Default....................................
Section 8.04 Action upon Certain Failures of a Servicer and upon Event
of Default.................................................
Section 8.05 Trustee to Act; Appointment of Successor....................
Section 8.06 Notification to Certificateholders..........................
ARTICLE IX
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee and Securities Administrator..............
Section 9.02 Certain Matters Affecting the Trustee and the Securities
Administrator..............................................
Section 9.03 Neither Trustee nor Securities Administrator Liable for
Certificates or Mortgage Loans.............................
Section 9.04 Trustee and Securities Administrator May Own Certificates...
Section 9.05 Eligibility Requirements for Trustee and the Securities
Administrator..............................................
Section 9.06 Resignation and Removal of Trustee and the Securities
Administrator..............................................
Section 9.07 Successor Trustee or Securities Administrator...............
Section 9.08 Merger or Consolidation of Trustee or Securities
Administrator..............................................
Section 9.09 Appointment of Co-Trustee or Separate Trustee...............
Section 9.10 Authenticating Agents.......................................
Section 9.11 Securities Administrator's Fees and Expenses and
Trustee's Fees and Expenses................................
Section 9.12 Appointment of Custodian....................................
Section 9.13 Paying Agents...............................................
Section 9.14 Limitation of Liability.....................................
Section 9.15 Trustee or Securities Administrator May Enforce Claims
Without Possession of Certificates.........................
Section 9.16 Suits for Enforcement.......................................
Section 9.17 Waiver of Bond Requirement..................................
Section 9.18 Waiver of Inventory, Accounting and Appraisal Requirement...
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase by Xxxxx Fargo Bank 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-2 Form of Face of Class 1-A-2 Certificate
Exhibit A-1-A-3 Form of Face of Class 1-A-3 Certificate
Exhibit A-1-A-4 Form of Face of Class 1-A-4 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 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 Contents of Servicing File
Exhibit K Form of Special Servicing Agreement
Exhibit L List of Recordation States
Exhibit M-1 Form of Initial Certification (Trustee)
Exhibit M-2 Form of Initial Certification (Custodian)
Exhibit N Form of Final Certification
Exhibit O Form of Certification
Exhibit P Form of Securities Administrator's Certification
Exhibit Q Form of BANA's Certification
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated August 27, 2004 is
hereby executed by and among BANC OF AMERICA FUNDING CORPORATION, as depositor
(together with its permitted successors and assigns, the "Depositor"), BANK OF
AMERICA, N.A, as a servicer (together with its permitted successors and assigns,
"BANA"), XXXXX FARGO BANK, N.A., as a servicer (together with its permitted
successors and assigns, "Xxxxx Fargo Bank" and, together with BANA, the
"Servicers") and as securities administrator (together with its permitted
successors and assigns, the "Securities Administrator") and WACHOVIA BANK,
NATIONAL ASSOCIATION, as trustee (together with its permitted successors and
assigns, the "Trustee").
W I T N E S S E T H T H A T:
- - - - - - - - - - - - - -
In consideration of the mutual agreements herein contained, the
Depositor, the Servicers, the Securities Administrator and the Trustee agree as
follows:
PRELIMINARY STATEMENT
In exchange for the Certificates, the Depositor hereby conveys the
Trust Estate to the Trustee to create the Trust. The Trust Estate for federal
income tax purposes will be treated as two real estate mortgage investment
conduits (the "Upper-Tier REMIC" and the "Lower-Tier REMIC," respectively, and
each a "REMIC"). The Certificates (other than the Class 1-A-R and Class 1-A-LR
Certificates) are referred to collectively as the "Regular Certificates" and
shall constitute "regular interests" in the Upper-Tier REMIC. The Uncertificated
Lower-Tier Interests shall constitute the "regular interests" in the Lower-Tier
REMIC. The Class 1-A-R Certificate shall be the "residual interest" in the
Upper-Tier REMIC and the Class 1-A-LR Certificate shall be the "residual
interest" in the Lower-Tier REMIC. The Certificates and the Uncertificated
Lower-Tier Interests will represent the entire beneficial ownership interest in
the Trust. The "latest possible maturity date" for federal income tax purposes
of all interests created hereby will be the REMIC Certificate Maturity Date.
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess thereof
in which the Classes of Certificates shall be issuable (except that one
Certificate of each Class of Certificates may be issued in any amount in excess
of the minimum denomination, but less than the integral multiple in excess of
the minimum):
Minimum Integral
Pass- Denomination/ Multiples
Initial Class Through Percentage in Excess
Classes Certificate Balance Rate Interest of Minimum
Class 1-A-1 $32,150,000 (1) $1,000 $1
Class 1-A-2 $910,000 (1) $1,000 $1
Class 1-A-3 $104,638,000 (1) $1,000 $1
Class 1-A-4 $8,180,000 (1) $1,000 $1
Class 1-A-R $50 (1) $50 N/A
Class 1-A-LR $50 (1) $50 N/A
Class 2-A-1 $180,149,000 (2) $1,000 $1
Class 3-A-1 $39,106,000 (3) $1,000 $1
Class 4-A-1 $207,075,000 (4) $1,000 $1
Class 5-A-1 $23,378,000 (5) $1,000 $1
Class B-1 $9,188,000 (6) $25,000 $1
Class B-2 $3,062,000 (6) $25,000 $1
Class B-3 $1,532,000 (6) $25,000 $1
Class B-4 $1,531,000 (6) $25,000 $1
Class B-5 $918,000 (6) $25,000 $1
Class B-6 $613,194 (6) $25,000 $1
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(1) Interest will accrue on these Certificates at a per annum rate equal to
the Net WAC for the Group 1 Mortgage Loans.
(2) Interest will accrue on these Certificates at a per annum rate equal to
the Net WAC for the Group 2 Mortgage Loans.
(3) Interest will accrue on these Certificates at a per annum rate equal to
the Net WAC for the Group 3 Mortgage Loans.
(4) Interest will accrue on these Certificates at a per annum rate equal to
the Net WAC for the Group 4 Mortgage Loans.
(5) Interest will accrue on these Certificates at a per annum rate equal to
the Net WAC for the Group 5 Mortgage Loans.
(6) For each Distribution Date, interest will accrue on these Certificates at
a per annum rate equal to the weighted average (based on the Group
Subordinate Amount for each Loan Group) of (i) with respect to Loan Group
1, the Net WAC for the Group 1 Mortgage Loans, (ii) with respect to Loan
Group 2, the Net WAC for the Group 2 Mortgage Loans, (iii) with respect to
Loan Group 3, the Net WAC for the Group 3 Mortgage Loans, (iv) with
respect to Loan Group 4, the Net WAC for the Group 4 Mortgage Loans and
(v) with respect to Loan Group 5, the Net WAC Rate for the 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, as applicable.
Adjusted Pool Amount: With respect to any Distribution Date and Loan
Group, the Cut-Off Date Pool Principal Balance of the Mortgage Loans in such
Loan Group minus the sum of (i) all amounts in respect of principal received in
respect of the Mortgage Loans in such Loan Group (including, without limitation,
amounts received as Monthly Payments, Periodic Advances, Principal Prepayments,
Liquidation Proceeds and Substitution Adjustment Amounts) and distributed to
Holders of Certificates on such Distribution Date and all prior Distribution
Dates and (ii) the principal portion of all Realized Losses (other than Debt
Service Reductions) incurred on the Mortgage Loans in such Loan Group.
Advance: A Periodic Advance or a Servicing Advance.
Aggregate Subordinate Percentage: As to any Distribution
Date, the aggregate Class Certificate Balance of the Subordinate Certificates
divided by the aggregate Pool Stated Principal Balance for all Loan Groups.
Agreement: This Pooling and Servicing Agreement together
with all amendments hereof and supplements hereto.
Amount Held for Future Distribution: As to any Distribution Date and
Loan Group, the total of the amounts held in the Servicer Custodial Accounts at
the close of business on the preceding Determination Date on account of (i)
Principal Prepayments and Liquidation Proceeds received or made on the Mortgage
Loan in such Loan Group in the month of such Distribution Date and (ii) payments
which represent receipt of Monthly Payments on the Mortgage Loans in such Loan
Group in respect of a Due Date or Due Dates subsequent to the related Due Date.
Ancillary Income: All prepayment premiums, assumption fees, late
payment charges and all other ancillary income and fees with respect to the
Mortgage Loans.
Appraised Value: With respect to (a) any Xxxxx Fargo Mortgage Loan
and the related Mortgaged Property, the lesser of (a) the appraised value
determined in an appraisal obtained by the originator generally no more than
four months prior to origination (or, with respect to newly constructed
properties, no more than 180 days prior to origination) and (b) the sales price
for such property. In some instances, the appraisal may be obtained by the
originator more than 120 days prior to origination, provided that (i) an
appraisal update is obtained and (ii) the original appraisal was obtained no
more than 180 days prior to origination and (b) any BANA Mortgage Loan and the
related Mortgaged Property, either (i) the lesser of (a) the appraised value
determined in an appraisal obtained by the originator at origination of such
Mortgage Loan and (b) the sales price for such property, except that, in the
case of Mortgage Loans the proceeds of which were used to refinance an existing
mortgage loan, the Appraised Value of the related Mortgaged Property is the
appraised value thereof determined in an appraisal obtained at the time of
refinancing, or (ii) the appraised value determined in an appraisal made at the
request of a Mortgagor subsequent to origination in order to eliminate the
Mortgagor's obligation to keep a Primary Insurance Policy in force.
Assignment of Mortgage: An individual assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form, sufficient under
the laws of the jurisdiction wherein the related Mortgaged Property is located
to give record notice of the sale of the Mortgage.
Authenticating Agents: As defined in Section 9.10.
BANA: Bank of America, N.A., a national banking association, or its
successor in interest, in its capacity as Servicer of the BANA Mortgage Loans,
or any successor servicer appointed as herein provided.
BANA Custodial Account: The separate Eligible Account or Accounts
created and maintained by BANA pursuant to Section 3.08(b).
BANA Mortgage Loans: The Mortgage Loans serviced by BANA and
identified as such on Exhibit D-3, Exhibit D-4 and Exhibit D-5 of the Mortgage
Loan Schedule.
Book-Entry Certificate: All Classes of Certificates other than the
Physical Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii)
a day on which banking institutions in the State of North Carolina, the State of
New York, the State of Minnesota, the State of Iowa, the State of Maryland, the
state in which the servicing offices of either Servicer is located or the state
in which the Corporate Trust Office of the Trustee or the Securities
Administrator is located are required or authorized by law or executive order to
be closed.
Buy-Down Account: The separate Eligible Account or Accounts created
and maintained by the Servicer pursuant to Section 3.23.
Buy-Down Agreement: An agreement governing the application of
Buy-Down Funds with respect to a Buy-Down Mortgage Loan.
Buy-Down Funds: Money advanced by a builder, seller or other
interested party to reduce a Mortgagor's monthly payment during the initial
years of a Buy-Down Mortgage Loan.
Buy-Down Mortgage Loan: Any Mortgage Loan in respect of which,
pursuant to a Buy-Down Agreement, the monthly interest payments made by the
related Mortgagor will be less than the scheduled monthly interest payments on
such Mortgage Loan, with the resulting difference in interest payments being
provided from Buy-Down Funds.
Calculated Principal Distribution: As defined in Section 5.03(d).
Certificate: Any of the Banc of America Funding Corporation Mortgage
Pass-Through Certificates, Series 2004-A that are issued pursuant to this
Agreement.
Certificate Account: The Eligible Account created and maintained by
the Securities Administrator pursuant to Section 3.08(c) in the name of the
Securities Administrator for the benefit of the Certificateholders and
designated "Xxxxx Fargo Bank, 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-A." The Certificate Account shall be deemed to consist of six sub-accounts;
one for each Loan Group and a sixth sub-account referred to herein as the
Upper-Tier Certificate Sub-Account. Funds in the Certificate Account shall be
held in trust for the Holders of the Certificates for the uses and purposes set
forth in this Agreement.
Certificate 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, either Servicer or any affiliate thereof shall be deemed
not to be outstanding and the Percentage Interest and Voting Rights evidenced
thereby shall not be taken into account in determining whether the requisite
amount of Percentage Interests or Voting Rights, as the case may be, necessary
to effect any such consent has been obtained, unless such entity is the
registered owner of the entire Class of Certificates, provided that the
Securities Administrator shall not be responsible for knowing that any
Certificate is registered in the name of an affiliate of the Depositor or a
Servicer unless one of its Responsible Officers has actual knowledge thereof.
Certification: As defined in Section 3.22.
Class: As to the Certificates, the Class 1-A-1, Class 1-A-2, Class
1-A-3, Class 1-A-4, 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 B-1, Class B-2, Class B-3, Class B-4, Class B-5 and
Class B-6 Certificates, as the case may be.
Class 1-A-1 Loss Amount: With respect to any Distribution Date after
the Senior Credit Support Depletion Date, the amount, if any, by which the Class
Certificate Balance of the Class 1-A-1 Certificates would be reduced as a result
of the allocation of any reduction pursuant to Section 5.03(b) to such Class,
without regard to the operation of Section 5.03(e).
Class 1-A-2 Loss Allocation Amount: With respect to any Distribution
Date after the Senior Credit Support Depletion Date, the lesser of (a) the Class
Certificate Balance of the Class 1-A-2 Certificates with respect to such
Distribution Date prior to any reduction for the Class 1-A-2 Loss Allocation
Amount and (b) the Class 1-A-1 Loss Amount with respect to such Distribution
Date.
Class 1-A-3 Loss Amount: With respect to any Distribution Date after
the Senior Credit Support Depletion Date, the amount, if any, by which the Class
Certificate Balance of the Class 1-A-3 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 1-A-4 Loss Allocation Amount: With respect to any Distribution
Date after the Senior Credit Support Depletion Date, the lesser of (a) the Class
Certificate Balance of the Class 1-A-4 Certificates with respect to such
Distribution Date prior to any reduction for the Class 1-A-4 Loss Allocation
Amount and (b) the Class 1-A-3 Loss Amount with respect to such Distribution
Date.
Class A Certificates: The Class 1-A-1, Class 1-A-2, Class 1-A-3,
Class 1-A-4, Class 2-A-1, Class 3-A-1, Class 4-A-1, and Class 5-A-1, Class 1-A-R
and Class 1-A-LR.
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 of Certificates
and any date of determination, and subject to Section 5.03(g), 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 1-A-2 and Class 1-A-4 Certificates, any reduction
allocated thereto pursuant to Section 5.03(e) plus (B) the sum of (i) all
increases in the Class Certificate Balance previously allocated thereto pursuant
to Section 5.03(b) and (ii) in the case of the Class 1-A-2 and Class 1-A-4
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: August 27, 2004.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest: As defined in Section 3.17.
Co-op Shares: Shares issued by private non-profit housing
corporations.
Corporate Trust Office: With respect to the Trustee, the principal
office of the Trustee at which at any particular time its certificate transfer
services are conducted, which office at the date of the execution of this
instrument is located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx,
00000-0000 Attention: Structured Finance Trust Services, BAFC, Series 2004-A, 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 each
Servicer. With respect to the Securities Administrator, the principal corporate
trust office of the Securities Administrator at which at any particular time its
corporate trust business with respect to this Agreement is conducted, which
office at the date of the execution of this instrument is located at 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Services - BAFC 2004-A, and for certificate transfer purposes is located at
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention:
Corporate Trust Services - BAFC 2004-A, 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 each Servicer.
Custodial Agreement: Initially, the Custodial Agreement, dated
August 27, 2004, by and among the Depositor, the Servicers, Trustee and the
Custodian and thereafter any custodial agreement entered into pursuant to
Section 9.12.
Custodian: Initially, Xxxxx Fargo Bank, N.A. as custodian under the
Custodial Agreement, and thereafter the Custodian, if any, hereafter appointed
by the Trustee pursuant to Section 9.12. The Custodian may (but need not) be the
Trustee or the Securities Administrator or any Person directly or indirectly
controlling or controlled by or under common control of either of them. Neither
the Depositor nor any Person directly or indirectly controlling or controlled by
or under common control with the Depositor may be appointed Custodian.
Customary Servicing Procedures: With respect to each Servicer,
procedures (including collection procedures) that such Servicer customarily
employs and exercises in servicing and administering mortgage loans for its own
account and which are in accordance with accepted mortgage servicing practices
of prudent lending institutions servicing mortgage loans of the same type as the
Mortgage Loans in the jurisdictions in which the related Mortgaged Properties
are located.
Cut-Off Date: August 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 $150,003,207.67 for Loan Group 1, $185,243,838.48 for Loan
Group 2, $40,212,260.87 for Loan Group 3, $212,931,483.35 for Loan Group 4 and
$24,039,504.01 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 related Servicer
is pursuing an appeal of the court order giving rise to any such modification
and (b)(1) such Mortgage Loan is not in default with respect to payment due
thereunder in accordance with the terms of such Mortgage Loan as in effect on
the Cut-Off Date or (2) Monthly Payments are being advanced by the related
Servicer in accordance with the terms of such Mortgage Loan as in effect on the
Cut-Off Date.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that became
the subject of a Debt Service Reduction.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
cured, repurchased or substituted for pursuant to Section 2.02.
Deficient Valuation: As to any Mortgage Loan and any Determination
Date, the excess of (i) the then outstanding indebtedness under such Mortgage
Loan over (ii) the secured valuation thereof established by a court of competent
jurisdiction (pursuant to an order which has become final and nonappealable) as
a result of a proceeding initiated by or against the related Mortgagor under the
Bankruptcy Code, as amended from time to time (11 U.S.C.), pursuant to which
such Mortgagor retained such Mortgaged Property; provided that no such excess
shall be considered a Deficient Valuation so long as (a) the related 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 related
Servicer in accordance with the terms of such Mortgage Loan as in effect on the
Cut-Off Date.
Deficient Valuation Mortgage Loan: Any Mortgage Loan that became the
subject of a Deficient Valuation.
Definitive Certificates: As defined in Section 6.02(c)(iii).
Depositor: Banc of America Funding Corporation, a Delaware
corporation, or its successor in interest, as depositor of the Trust Estate.
Depository: The Depository Trust Company, the nominee of
which is Cede & Co., as the registered Holder of the Book-Entry Certificates
or any successor thereto appointed in accordance with this Agreement. The
Depository shall at all times be a "clearing corporation" as defined in
Section 8-102(3) of the Uniform Commercial Code of the State of New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date, the 16th day of the
month of the related Distribution Date or, if such 16th day is not a Business
Day, the Business Day immediately preceding such day.
Distribution Date: The 20th day of each month beginning in September
2004 (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 or (ii) the senior, unsecured long-term debt rating of Xxxxx Fargo &
Company is less than "BBB-" by Fitch.
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 "F-1" in the case of Fitch 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 "AA-" in
the case of Fitch 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.
ERISA: The Employee Retirement Income Security Act of 1974,
as amended.
ERISA Restricted Certificates: Any Class B-1, Class B-2,
Class B-3, Class B-4, Class B-5 or Class B-6 Certificate.
Escrow Account: As defined in Section 3.09(a).
Escrow Payments: The amounts constituting taxes, assessments,
Primary Mortgage Insurance Policy premiums, fire and hazard insurance premiums
and other payments as may be required to be escrowed by the Mortgagor with the
mortgagee pursuant to the terms of any Mortgage Note or Mortgage.
Event of Default: As defined in Section 8.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any Liquidation Proceeds of such Mortgage
Loan received in the calendar month in which such Mortgage Loan became a
Liquidated Mortgage Loan, net of any amounts previously reimbursed to the
related Servicer as Nonrecoverable Advance(s) with respect to such Mortgage Loan
pursuant to Section 3.11(a)(iii), exceeds (i) the unpaid principal balance of
such Liquidated Mortgage Loan as of the Due Date in the month in which such
Mortgage Loan became a Liquidated Mortgage Loan plus (ii) accrued interest at
the Mortgage Interest Rate from the Due Date as to which interest was last paid
or for which a Periodic Advance was made (and not reimbursed) up to the Due Date
applicable to the Distribution Date immediately following the calendar month
during which such liquidation occurred.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
Final Distribution Date: The Distribution Date on which the final
distribution in respect of the Certificates will be made pursuant to Section
10.01.
Financial Market Service: Bloomberg Financial Service and any other
financial information provider designated by the Depositor by written notice to
the Securities Administrator.
FIRREA: The Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as amended.
Fitch: Fitch Ratings, or any successor thereto.
FNMA: Xxxxxx Xxx, or any successor thereto.
Form 10-K: As defined in Section 3.22(a).
Fractional Interest: As defined in Section 5.02(d).
Gross Margin: As to each Mortgage Loan, the fixed percentage set
forth in the related Mortgage Note and indicated in the Mortgage Loan Schedule
as the "Gross Margin," which percentage is added to the Index on each Rate
Adjustment Date to determine (subject to rounding, the Periodic Cap and the
Lifetime Cap) the Mortgage Interest Rate on such Mortgage Loan until the next
Rate Adjustment Date.
Group: Any of Group 1, Group 2, Group 3, Group 4 or Group 5.
Group 1: The Group 1 Senior Certificates.
Group 1 Lower-Tier Rate: For each Distribution Date, a per annum
rate equal to the Net WAC for the Group 1 Mortgage Loans.
Group 1 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-1
hereto.
Group 1 Senior Certificates: Class 1-A-1, Class 1-A-2, Class 1-A-3,
Class 1-A-4, Class 1-A-R and Class 1-A-LR Certificates.
Group 2: The Group 2 Senior Certificates.
Group 2 Lower-Tier Rate: For each Distribution Date, a per annum
rate equal to the Net WAC for the Group 2 Mortgage Loans.
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 Lower-Tier Rate: For each Distribution Date, a per annum
rate equal to the Net WAC for the Group 3 Mortgage Loans.
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 Lower-Tier Rate: For each Distribution Date, a per annum
rate equal to the Net WAC for the Group 4 Mortgage Loans.
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 Lower-Tier Rate: For each Distribution Date, a per annum
rate equal to the Net WAC for the Group 5 Mortgage Loans.
Group 5 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-5
hereto.
Group 5 Senior Certificates: Class 5-A-1 Certificates.
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 Servicers,
(ii) does not have any direct financial interest or any material indirect
financial interest in the Depositor or either Servicer or in an affiliate of any
of them, and (iii) is not connected with the Depositor or either Servicer as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
Index: As to any Mortgage Loan and Rate Adjustment Date, any of the
One-Year CMT Index, the One-Year LIBOR Index or the Six-Month LIBOR Index. The
Index applicable to each Mortgage Loan will be indicated on the Mortgage Loan
Schedule. In the event that either 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 related insurance policy, including all riders and
endorsements thereto in effect, including any replacement policy or policies for
any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such Insurance
Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any
other insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: As to any Distribution Date and each Class
of Certificates, 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.
Lifetime Cap: As to any Mortgage Loan, the maximum Mortgage Interest
Rate set forth in the related Mortgage Note and indicated in the Mortgage Loan
Schedule.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) that was liquidated in the
calendar month preceding the month of such Distribution Date and as to which the
related Servicer has certified (in accordance with this Agreement) that it has
received all proceeds it expects to receive in connection with the liquidation
of such Mortgage Loan including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or otherwise or
amounts received in connection with any condemnation or partial release of a
Mortgaged Property and any other proceeds received in connection with an REO
Property, less the sum of related unreimbursed Servicing Fees and Advances.
Loan Group: Any of Loan Group 1, Loan Group 2, 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 (a) any Xxxxx Fargo Mortgage
Loan and any date of determination, the ratio, expressed as a percentage, of the
principal amount of the related Mortgage Loan at origination to the Appraised
Value of the related Mortgaged Property and (b) any BANA Mortgage Loan and any
date of determination, the fraction, expressed as a percentage, the numerator of
which is the outstanding principal balance of the related Mortgage Loan at the
date of determination and the denominator of which is the Appraised Value of the
related Mortgaged Property.
Lower-Tier Distribution Amount: As defined in Section 5.02(a).
Lower-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account (other than amounts held in respect
of the Upper-Tier Certificate Sub-Account), the insurance policies, if any,
relating to a Mortgage Loan and the Mortgaged Property which secured a Mortgage
Loan and which has been acquired by foreclosure or deed in lieu of foreclosure.
MERS: As defined in Section 2.01(b)(iii).
Monthly Form 8-K: As defined in Section 3.22(a).
Monthly Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on a Mortgaged Property securing a Mortgage Note or creating a first
lien on a leasehold interest.
Mortgage 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 Lifetime
Cap applicable to such Mortgage Loan at any time during the life of such
Mortgage Loan.
Mortgage Loan Purchase Agreement: The Mortgage Loan
Purchase Agreement, dated August 27, 2004, between Bank of America, N.A., as
seller, and the Depositor, as purchaser.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to
time amended by the applicable 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) the Appraised Value; (xvi) the first Rate Adjustment Date; (xvii) the Rate
Ceiling; (xviii) the Periodic Cap; (xix) the Gross Margin; (xx) whether such
Mortgage Loan has an option to convert from an adjustable rate of interest to a
fixed rate of interest; (xxi) the closing date of such Mortgage Loan; and (xxii)
whether such Mortgage Loan is a BANA Mortgage Loan or a Xxxxx Fargo Mortgage
Loan. With respect to the Mortgage Loans in each Loan Group 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 Co-op Shares or residential long-term leases.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Interest Rate: As to any Mortgage Loan and Distribution
Date, such Mortgage Loan's Mortgage Interest Rate thereon on the first day of
the month preceding the month of the related Distribution Date reduced by (i)
the Servicing Fee Rate and (ii) the Securities Administrator Fee Rate.
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 Prepayment Interest Shortfalls exceeds
the aggregate Compensating Interest for such Distribution Date.
Non-U.S. Person: A Person other than a U.S. Person.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made in respect of a Mortgage Loan which has not been previously
reimbursed and which, in the good faith judgment of the related Servicer, will
not or, in the case of a proposed Advance, would not be ultimately recoverable
from the related Mortgagor, related Liquidation Proceeds, or other recoveries in
respect of the related Mortgage Loan.
NYCEMA: A New York Consolidation, Extension and Modification
Agreement.
Offered Certificates: The Senior Certificates and
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 either
Servicer, 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 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 Adjustment Date or (ii) up to the date 45 days before
the applicable 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 a Servicer, except that
any opinion of counsel relating to the qualification of the Trust Estate as two
separate REMICs or compliance with the REMIC Provisions must be an opinion of
Independent counsel.
Original Fractional Interest: With respect to each of the following
Classes of Subordinate Certificates, the corresponding percentage described
below, as of the Closing Date:
Class B-1 1.25%
Class B-2 0.75%
Class B-3 0.50%
Class B-4 0.25%
Class B-5 0.10%
Class B-6 0.00%
Original Subordinate Class Certificate Balance: $16,844,194.
OTS: The Office of Thrift Supervision.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan which
was not the subject of a Principal Prepayment in Full prior to such Due Date,
which did not become a Liquidated Mortgage Loan prior to such Due Date and which
was not purchased from the Trust prior to such Due Date pursuant to Sections
2.02.
Owner Mortgage File: With respect to each (i) BANA Mortgage loan,
the related mortgage loan documents listed in Section 2.01(b)(I) and (ii) Xxxxx
Fargo Mortgage Loan, the related mortgage loan documents listed in Section
2.01(b)(II), in each case together with any additional documents required to be
added to such Owner Mortgage File pursuant to this Agreement.
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.
Percentage Interest: As to any Certificate, the percentage obtained
by dividing the initial Certificate Balance of such Certificate by the Initial
Class Certificate Balance, as applicable, of the Class of which such Certificate
is a part.
Periodic Advance: The payment required to be made by a Servicer with
respect to any Distribution Date pursuant to Section 3.20, the amount of any
such payment being equal to the aggregate of Monthly Payments (net of the
Servicing Fee) on the Mortgage Loans (including any REO Property) serviced by
such Servicer that were due on the related Due Date and not received as of the
close of business on the related Determination Date, less the aggregate amount
of any such delinquent payments that such Servicer has determined would
constitute a Nonrecoverable Advance if advanced.
Periodic Cap: For each Mortgage Loan, the applicable limit on
adjustment of the Mortgage Interest Rate for each Rate Adjustment Date specified
in the applicable Mortgage Note and designated as such in the Mortgage Loan
Schedule.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by the
United States, FHLMC, FNMA or any agency or instrumentality of the United
States when such obligations are backed by the full faith and credit of
the United States; provided that such obligations of FHLMC or FNMA shall
be limited to senior debt obligations and mortgage participation
certificates other than investments in mortgage-backed or mortgage
participation securities with yields evidencing extreme sensitivity to the
rate of principal payments on the underlying mortgages, which shall not
constitute Permitted Investments hereunder;
(ii) repurchase agreements on obligations specified in clause (i)
maturing not more than one month from the date of acquisition thereof with
a corporation incorporated under the laws of the United States or any
state thereof rated not lower than "F-1" by Fitch 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 "F-1" by Fitch 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 "F-1" by Fitch
and "A-1" by S&P;
(v) investments in money market funds (including funds of the
Trustee, the Securities Administrator or their affiliates, or funds for
which an affiliate of the Trustee or the Securities Administrator acts as
advisor, as well as funds for which the Trustee and its affiliates or the
Securities Administrator and its affiliates may receive compensation)
rated either "AAA" by Fitch (if rated by Fitch) 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
either Servicer, will not affect the qualification of the Trust Estate as
two separate REMICs;
provided, however, that no instrument shall be a Permitted Investment if it
represents either (a) the right to receive only interest payments with respect
to the underlying debt instrument or (b) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest with respect to such instrument provide a yield to
maturity greater than 120% of the yield to maturity at par of such underlying
obligations.
Permitted Transferee: Any Person other than (i) the United States, or any
State or any political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, international organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) (except
certain farmers' cooperatives described in Code Section 521), (iv) rural
electric and telephone cooperatives described in Code Section 1381(a)(2)(C), (v)
a Person with respect to whom the income on a Residual Certificate is allocable
to a foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of such Person or any other U.S. Person, and (vi)
any other Person so designated by either 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 excess of (a) the sum of (i) the aggregate of (A) the interest
portion of any Monthly Payment on a Mortgage Loan in such Loan Group (net of the
Servicing Fee) and the principal portion of any Monthly Payment on a Mortgage
Loan in such Loan Group due on the Due Date in the month in which such
Distribution Date occurs and which is received prior to the related
Determination Date and (B) all Periodic Advances made by a Servicer in respect
of such Loan Group and payments of Compensating Interest allocable to such Loan
Group in respect of such Distribution Date deposited to the related Servicer
Custodial Account pursuant to Section 3.08(b)(vii); (ii) all Liquidation
Proceeds received on the Mortgage Loans in such Loan Group during the preceding
calendar month and deposited to the Servicer Custodial Accounts pursuant to
Section 3.08(b)(iii); (iii) all Principal Prepayments received on the Mortgage
Loans in such Loan Group during the month preceding the month of such
Distribution Date and deposited to the Servicer Custodial Accounts pursuant to
Section 3.08(b)(i) during such period; (iv) in connection with Defective
Mortgage Loans in such Loan Group, as applicable, the aggregate of the
Repurchase Prices and Substitution Adjustment Amounts deposited on the related
Remittance Date pursuant to Section 3.08(b)(vi); (v) any other amounts in the
Servicer Custodial Accounts deposited therein pursuant to Sections 3.08(b)(iv),
(v) and (ix) in respect of such Distribution Date and such Loan Group; (vi) any
Reimbursement Amount required to be included pursuant to Section 5.02(a) and
(vii) any Recovery in respect of such Distribution Date; over (b) any (i)
amounts permitted to be withdrawn from the Servicer Custodial Accounts pursuant
to clauses (i) through (viii), inclusive, of Section 3.11(a) in respect of such
Loan Group and (ii) amounts permitted to be withdrawn from the Certificate
Account pursuant to clauses (i) and (ii) of Section 3.11(b) in respect of such
Loan Group.
Pool Stated Principal Balance: As to any Distribution Date and Loan
Group, the aggregate Stated Principal Balances of all Mortgage Loans in such
Loan Group that were Outstanding Mortgage Loans immediately following the Due
Date in the month preceding the month in which such Distribution Date occurs.
Prepayment Interest Shortfall: As to any Distribution Date and each
Mortgage Loan subject to a Principal Prepayment received during the calendar
month preceding such Distribution Date, the amount, if any, by which one month's
interest at the related Mortgage Interest Rate (net of the Servicing Fee) on
such Principal Prepayment exceeds the amount of interest paid in connection with
such Principal Prepayment.
Primary Mortgage Insurance Policy: Each policy of primary mortgage
guaranty insurance or any replacement policy therefor with respect to any
Mortgage Loan, in each case issued by an insurer acceptable to FNMA or FHLMC.
Principal Amount: As to any Distribution Date and Loan Group, the
sum of (i) 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 each Mortgage Loan in such
Loan Group that was repurchased by the Depositor or the Seller pursuant to the
Mortgage Loan Purchase Agreement or Xxxxx Fargo Bank pursuant to the Transfer
Agreements as of such Distribution Date, (c) any Substitution Adjustment Amount
in connection with a Defective Mortgage Loan in such Loan Group received with
respect to such Distribution Date, (d) any Liquidation Proceeds allocable to
recoveries of principal of Mortgage Loans in such Loan Group that are not yet
Liquidated Mortgage Loans received by a Servicer during the calendar month
preceding the month of such Distribution Date, (e) with respect to each Mortgage
Loan in such Loan Group that became a Liquidated Mortgage Loan during the
calendar month preceding the month of such Distribution Date, the amount of
Liquidation Proceeds (excluding Excess Proceeds) allocable to principal received
by a Servicer with respect to such Mortgage Loan during the calendar month
preceding the month of such Distribution Date and (f) all Principal Prepayments
on the Mortgage Loans in such Loan Group received by a Servicer during the
calendar month preceding the month of such Distribution Date; and (ii) the
Recovery for such Distribution Date.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan (other than Liquidation Proceeds) which is received in advance
of its scheduled Due Date and is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment of the entire
principal balance of a Mortgage Loan.
Private Certificates: The Class 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.
Rate Adjustment Date: As to each Mortgage Loan, the Due Date on
which date an adjustment to the Mortgage Interest Rate of such Mortgage Loan
becomes effective under the related Mortgage Note, which Due Date is the date
set forth in the Mortgage Loan Schedule as the first Rate Adjustment Date and
each subsequent anniversary thereof.
Rate Ceiling: The maximum per annum Mortgage Interest Rate permitted
under the related Mortgage Note.
Rating Agency: Each of Fitch 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, each Servicer and the Securities Administrator. References herein to a
given rating or rating category of a Rating Agency shall mean such rating
category without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an
amount as of the date of such liquidation, equal to (i) the unpaid principal
balance of the Liquidated Mortgage Loan as of the date of such liquidation, plus
(ii) interest at the Net Mortgage Interest Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any, received during
the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Net Mortgage Interest Rate and to principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan that has become the
subject of a Deficient Valuation, if the principal amount due under the related
Mortgage Note has been reduced, the difference between the principal balance of
the Mortgage Loan outstanding immediately prior to such Deficient Valuation and
the principal balance of the Mortgage Loan as reduced by the Deficient
Valuation. With respect to each Mortgage Loan that has become the subject of a
Debt Service Reduction and any Distribution Date, the amount, if any, by which
the principal portion of the related Monthly Payment has been reduced.
Record Date: The last day of the month (or, if such day is not a
Business Day, the preceding Business Day) preceding the month of the related
Distribution Date.
Recovery: As to any Distribution Date and Loan Group, the sum of all
amounts received during the calendar month preceding the month of such
Distribution Date on each Mortgage Loan in such Loan Group subsequent to such
Mortgage Loan being determined to be a Liquidated Mortgage Loan.
Refinance Mortgage Loan: Any Mortgage Loan the proceeds of which
were not used to purchase the related Mortgaged Property.
Regular Certificates: As defined in the Preliminary Statement
hereto.
Reimbursement Amount: As defined in Section 2.02.
Related Group: For Loan Group 1, Group 1, 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, as it may be
amended from time to time.
Relief Act Reduction: With respect to any Distribution Date, for any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act or comparable state legislation, the amount,
if any, by which (i) interest collectible on such Mortgage Loan for the most
recently ended calendar month is less than (ii) interest accrued pursuant to the
terms of the Mortgage Note on the same principal amount and for the same period
as the interest collectible on such Mortgage Loan for the most recently ended
calendar month.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Certificate Maturity Date: The "latest possible maturity date"
of the Regular Certificates as that term is defined in Section 2.07.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Section 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time, as well as provisions of applicable state laws.
Remittance Date: As to any Distribution Date, by 2:00 p.m. Eastern
time on the 18th calendar day of each month, of if such day is not a Business
Day, the Business Day immediately preceding such day.
REO Disposition Period: As defined in Section 3.14.
REO Property: A Mortgaged Property acquired by a Servicer on behalf
of the Trust through foreclosure or deed-in-lieu of foreclosure in connection
with a defaulted Mortgage Loan.
Repurchase Price: As to any Defective Mortgage Loan repurchased on
any date pursuant to Sections 2.02, an amount equal to the sum of (i) the unpaid
principal balance thereof and (ii) the unpaid accrued interest thereon at the
applicable Mortgage Interest Rate from the Due Date to which interest was last
paid by the Mortgagor to the first day of the month following the month in which
such Mortgage Loan became eligible to be repurchased.
Request for Release: The Request for Release submitted by a Servicer
to the Trustee or the Custodian on behalf of the Trustee, substantially in the
form of Exhibit E.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to time under this
Agreement in respect of such Mortgage Loan.
Residual 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).
Retained Mortgage File: A file maintained by Xxxxx Fargo Bank prior
to any Document Transfer Event for each Xxxxx Fargo Mortgage Loan that contains
the documents specified in Section 2.01(c) and any additional documents required
to be added to the Retained Mortgage File pursuant to this Agreement.
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
the Related 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, 0.004% per annum.
Seller: Bank of America, N.A., a national banking association, or
its successor in interest, as seller of the Mortgage Loans under the Mortgage
Loan Purchase Agreement.
Senior Certificates: The Class A Certificates.
Senior Credit Support Depletion Date: The date on which the
aggregate Class Certificate Balance of the Subordinate Certificates is reduced
to zero.
Senior Percentage: With respect to any Distribution Date and Loan
Group, the percentage, carried to at least six places rounded up, obtained by
dividing the aggregate Class Certificate Balance of the Senior Certificates of
the related Group immediately prior to such Distribution Date by the Pool Stated
Principal Balance of such Loan Group immediately prior to such Distribution
Date.
Senior Prepayment Percentage: For any Distribution Date and Loan
Group during the seven years beginning on the first Distribution Date, 100%. The
Senior Prepayment Percentage for any Distribution Date and Loan Group occurring
on or after the seventh year anniversary of the first Distribution Date will,
except as provided herein, be as follows: for any Distribution Date in the first
year thereafter, the Senior Percentage for such Loan Group plus 70% of the
Subordinate Percentage for such Loan Group for such Distribution Date; for any
Distribution Date in the second year thereafter, the Senior Percentage for such
Loan Group plus 60% of the Subordinate Percentage for such Loan Group for such
Distribution Date; for any Distribution Date in the third year thereafter, the
Senior Percentage for such Loan Group plus 40% of the Subordinate Percentage for
such Loan Group for such Distribution Date; for any Distribution Date in the
fourth year thereafter, the Senior Percentage for such Loan Group plus 20% of
the Subordinate Percentage for such Loan Group for such Distribution Date; and
for any Distribution Date in the fifth or later years thereafter, the Senior
Percentage for such Loan Group for such Distribution Date, unless (i) on any of
the foregoing Distribution Dates the Total Senior Percentage exceeds the initial
Total Senior Percentage, in which case the Senior Prepayment Percentage for Loan
Group 1, Loan Group 2, Loan Group 3, Loan Group 4 and Loan Group 5 for such
Distribution Date will once again equal 100%, (ii) on any Distribution Date
before the Distribution Date occurring in September 2007, the Aggregate
Subordinate Percentage for such Distribution Date is greater than or equal to
twice the initial Aggregate Subordinate Percentage, in which case the Senior
Prepayment Percentage for Loan Group 1 for such Distribution Date will equal the
Senior Percentage for Loan Group 1 plus 50% of the Subordinate Percentage for
Loan Group 1, the Senior Prepayment Percentage for Loan Group 2 for such
Distribution Date will equal the Senior Percentage for Loan Group 2 plus 50% of
the Subordinate Percentage for Loan Group 2, the Senior Prepayment Percentage
for Loan Group 3 for such Distribution Date will equal the Senior Percentage for
Loan Group 3 plus 50% of the Subordinate Percentage for Loan Group 3, the Senior
Prepayment Percentage for Loan Group 4 for such Distribution Date will equal the
Senior Percentage for Loan Group 4 plus 50% of the Subordinate Percentage for
Loan Group 4 and the Senior Prepayment Percentage for Loan Group 5 for such
Distribution Date will equal the Senior Percentage for Loan Group 5 plus 50% of
the Subordinate Percentage for Loan Group 5 or (iii) on any Distribution Date
occurring on or after the Distribution Date in September 2007, the Aggregate
Subordinate Percentage for such Distribution Date is greater than or equal to
twice the initial Aggregate Subordinate Percentage, in which case the Senior
Prepayment Percentage for Loan Group 1 for such Distribution Date will equal the
Senior Percentage for Loan Group 1, the Senior Prepayment Percentage for Loan
Group 2 for such Distribution Date will equal the Senior Percentage for Loan
Group 2, the Senior Prepayment Percentage for Loan Group 3 for such Distribution
Date will equal the Senior Percentage for Loan Group 3, the Senior Prepayment
Percentage for Loan Group 4 for such Distribution Date will equal the Senior
Percentage for Loan Group 4 and the Senior Prepayment Percentage for Loan Group
5 for such Distribution Date will equal the Senior Percentage for Loan Group 5.
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 (i)(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 (i)(e) and
(f) and the amount described in clause (ii) 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 or 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 Class Certificate
Balance set forth below:
Percentage of
Original Subordinate Class
Distribution Date Occurring Certificate Balance
September 2004 through August 2007 20%
September 2007 through August 2012 30%
September 2012 through August 2013 35%
September 2013 through August 2014 40%
September 2014 through August 2015 45%
September 2015 and thereafter 50%
Servicer: With respect to the BANA Mortgage Loans, BANA or its
successor in interest, in its capacity as servicer of the BANA Mortgage Loans,
or any successor in interest appointed as herein provided, and, with respect to
the Xxxxx Fargo Mortgage Loans, Xxxxx Fargo Bank or its successor in interest,
in its capacity as servicer of the Xxxxx Fargo Mortgage Loans, or any successor
in interest appointed as herein provided.
Servicer Advance Date: As to any Distribution Date, 11:30 a.m.,
Eastern time, on the Remittance Date.
Servicer Custodial Account: The BANA Custodial Account or Xxxxx
Fargo Custodial Account, as applicable.
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 related
Servicer Custodial Account.
Servicer's Certificate: The monthly report required by Section 4.01.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by either Servicer of its
servicing obligations, including, but not limited to (i) the preservation,
restoration and protection of a Mortgaged Property, (ii) expenses reimbursable
to either Servicer pursuant to Section 3.14 and any enforcement or judicial
proceedings, including foreclosures, (iii) the management and liquidation of any
REO Property and (iv) compliance with the obligations under Section 3.12.
Servicing Compensation: With respect to each Distribution Date, the
sum of (i) the aggregate Servicing Fee for such Distribution Date subject to
reduction as provided in Section 3.17, (ii) any Ancillary Income, (iii) Excess
Proceeds for the preceding month and (iv) the Servicer Custodial Account
Reinvestment Income for such Distribution Date.
Servicing Fee: With respect to each Mortgage Loan and Distribution
Date, the amount of the fee payable to the related Servicer, which shall, for
such Distribution Date, be equal to one-twelfth of the product of the Servicing
Fee Rate with respect to such Mortgage Loan and the Stated Principal Balance of
such Mortgage Loan. Such fee shall be payable monthly, computed on the basis of
the same Stated Principal Balance and period respecting which any related
interest payment on a Mortgage Loan is computed. Each Servicer's right to
receive the Servicing Fee is limited to, and payable solely from, the interest
portion (including recoveries with respect to interest from Liquidation Proceeds
and other proceeds, to the extent permitted by Section 3.11) of related Monthly
Payments collected by such Servicer, or as otherwise provided under Section
3.11.
Servicing Fee Rate: With respect to each Mortgage Loan will be (i)
0.250% per annum for Loan Group 1, Loan Group 3 and Loan Group 4 and (ii) 0.375%
per annum for Loan Group 2 and Loan Group 5.
Servicing File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit J hereto, and any additional documents required to be
added to the Servicing File pursuant to the Agreement.
Servicing Officer: Any officer of a Servicer involved in, or
responsible for, the administration and servicing of the applicable Mortgage
Loans whose name appears on a list of servicing officers furnished to the
Securities Administrator and the Custodian by such Servicer, as such list may
from time to time be amended.
Servicing Transfer Costs: All reasonable costs and expenses incurred
by the Securities Administrator or the Trustee, as applicable, in connection
with the transfer of servicing from a predecessor Servicer, including, without
limitation, any costs or expenses associated with the complete transfer of all
servicing data and the completion, correction or manipulation of such servicing
data as may be required by the Securities Administrator or the Trustee, as
applicable, to correct any errors or insufficiencies in the servicing data or
otherwise to enable the Securities Administrator or the Trustee, as applicable,
to service the Mortgage Loans properly and effectively.
Similar Law: As defined in Section 6.02(e).
Six-Month LIBOR Index: a rate per annum that is defined to be the
arithmetic mean of the interbank offered rates for six month 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 Adjustment Date or (ii)
up to 45 days before the applicable Adjustment Date.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor thereto.
Stated Principal Balance: As to any Mortgage Loan and date, the
unpaid principal balance of such Mortgage Loan as of the Due Date immediately
preceding such date as specified in the amortization schedule at the time
relating thereto (before any adjustment to such amortization schedule by reason
of any moratorium or similar waiver or grace period) after giving effect to any
previous partial Principal Prepayments and Liquidation Proceeds allocable to
principal (other than with respect to any Liquidated Mortgage Loan) and to the
payment of principal due on such Due Date and irrespective of any delinquency in
payment by the related Mortgagor, and after giving effect to any Deficient
Valuation.
Subordinate Balance Ratio: As of any date of determination, the
ratio among the principal balances of the Class 1-LS Interest, the Class 2-LS
Interest, the Class 3-LS Interest, the 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 of
Loan Group 3, the Group Subordinate Amount of 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
(i)(a) through (d) of the definition of "Principal Amount" for such Distribution
Date and Loan Group and (ii) the Subordinate Prepayment Percentage of the
amounts described in clauses (i)(e) and (f) and the amount described in clause
(ii) of the definition of "Principal Amount" for such Distribution Date and Loan
Group.
Subservicer: Any Person with which a Servicer has entered into a
Subservicing Agreement and which satisfies the requirements set forth therein.
Subservicing Agreement: Any subservicing agreement (which, in the
event the Subservicer is an affiliate of a Servicer, need not be in writing)
between a Servicer and any Subservicer relating to servicing and/or
administration of certain Mortgage Loans as provided in Section 3.02.
Substitute Mortgage Loan: A Mortgage Loan substituted for a
Defective Mortgage Loan which must, on the date of such substitution (i) have a
Stated Principal Balance, after deduction of the principal portion of the
Monthly Payment due in the month of substitution, not in excess of, and not more
than 10% less than, the Stated Principal Balance of the Defective Mortgage Loan;
(ii) have a Net Mortgage Interest Rate equal to that of the Defective Mortgage
Loan; (iii) have a Loan-to-Value Ratio not higher than that of the Defective
Mortgage Loan; (iv) have a Gross Margin equal to that of the Defective Mortgage
Loan; (v) have a Periodic Cap and Rate Ceiling equal to that of the Defective
Mortgage Loan; (vi) have the same Index and frequency of mortgage interest rate
adjustment as the Deleted Mortgage Loan; (vii) have a remaining term to maturity
not greater than (and not more than one year less than) that of the Defective
Mortgage Loan; and (viii) comply with each Mortgage Loan representation and
warranty set forth in the Mortgage Loan Purchase Agreement and 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 Regulations
Section 1.860F-4(d) and Treasury Regulations Section 301.6231(a)(7)-1.
Total Senior Percentage: With respect to any Distribution Date, the
percentage, carried to at least six places rounded up, obtained by dividing the
aggregate Class Certificate Balance of the Class A Certificates immediately
prior to such Distribution Date by the aggregate Pool Stated Principal Balance
of all Loan Groups immediately prior to such Distribution Date.
Transfer Agreements: Each of (i) the Mortgage Loan Purchase
Agreement, dated as of May 1, 2004, by and between Bank of America, N.A., as
purchaser, and Xxxxx Fargo Bank (successor by merger to Xxxxx Fargo Home
Mortgage, Inc.), as seller, (ii) the Seller's Warranties and Servicing
Agreement, dated as of May 1, 2004, between Bank of America, N.A., as purchaser,
and Xxxxx Fargo Bank (successor by merger to Xxxxx Fargo Home Mortgage, Inc.),
as seller and servicer, (iii) the Seller's Warranties and Servicing Agreement,
dated as of August 1, 2004, between Bank of America, N.A., as purchaser, and
Xxxxx Fargo Bank, as seller and servicer, and (iv) the Commitment Letters, dated
April 7, 2004 and July 15, 2004, respectively, each between Bank of America,
N.A., as purchaser, and Xxxxx Fargo Bank (successor by merger to Xxxxx Fargo
Home Mortgage, Inc.).
Transferor: Xxxxx Fargo Bank (successor by merger to Xxxxx Fargo
Home Mortgage, Inc.) or its successors in interest.
Treasury Regulations: The final and temporary regulations
promulgated under the Code by the U.S. Department of the Treasury.
Trust: The trust created by this Agreement, which shall be named
"Banc of America Funding 2004-A Trust."
Trust Estate: The corpus of the Trust created to the extent
described herein, consisting of the Mortgage Loans, such assets as shall from
time to time be identified as deposited in the Servicer Custodial Accounts or
the Certificate Account, in accordance with this Agreement, REO Property, the
Primary Insurance Policies, any other Required Insurance Policy and the right to
receive amounts, if any, payable on behalf of any Mortgagor from the Buy-Down
Account relating to any Buy-Down Mortgage Loan. The Buy-Down Accounts shall not
be part of the Trust Estate.
Trustee: Wachovia Bank, National Association, and its
successors-in-interest and, if a successor trustee is appointed hereunder, such
successor, as trustee.
Uncertificated Lower-Tier Interest: A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and is
entitled to monthly distributions as provided in Section 5.02(a) hereof. Any of
the Class 1-L Interest, Class 1-LS Interest, Class 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
Lower-Tier Interests.
Upper-Tier Certificate: Any one of the Senior Certificates (other
than the Class 1-A-LR Certificate) and the Class B Certificates.
Upper-Tier Certificate Sub-Account: The sub-account of the
Certificate Account designated by the Securities Administrator pursuant to
Section 3.08(f).
Upper-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Uncertificated Lower-Tier Interests and such
amounts as shall from time to time be deemed to be held in the Upper-Tier
Certificate Sub-Account.
U.S. Person: A citizen or resident of the United States, a
corporation or partnership (unless, in the case of a partnership, Treasury
Regulations are adopted that provide otherwise) created or organized in or under
the laws of the United States, any state thereof or the District of Columbia,
including an entity treated as a corporation or partnership for federal income
tax purposes, an estate whose income is subject to United States federal income
tax regardless of its source, or a trust if a court within the United States is
able to exercise primary supervision over the administration of such trust, and
one or more such U.S. Persons have the authority to control all substantial
decisions of such trust (or, to the extent provided in applicable Treasury
Regulations, certain trusts in existence on August 20, 1996 which are eligible
to elect to be treated as U.S. Persons).
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Holders of
the Residual Certificates 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., or its successor in
interest, in its capacity as Servicer of the Xxxxx Fargo Mortgage Loans, or any
successor Servicer appointed as herein provided.
Xxxxx Fargo Bank Custodial Account: The separate Eligible Account or
Accounts created and maintained by Xxxxx Fargo Bank pursuant to Section 3.08(b).
Xxxxx Fargo Mortgage Loans: The Mortgage Loans serviced by Xxxxx
Fargo Bank and identified as such on Exhibit D-1 and Exhibit D-2 of the Mortgage
Loan Schedule.
Section 1.02 Interest Calculations. All calculations of interest
will be made on a 360-day year consisting of twelve 30-day months. All dollar
amounts calculated hereunder shall be rounded to the nearest xxxxx with one-half
of one xxxxx being rounded down.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee on behalf of the Trust
for the benefit of the Certificateholders, without recourse, all the right,
title and interest of the Depositor in and to the Mortgage Loans, including all
interest and principal received on or with respect to the Mortgage Loans (other
than payments of principal and interest due and payable on the Mortgage Loans on
or before the Cut-Off Date) and the Depositor's rights under the Mortgage Loan
Purchase Agreement, including the rights of the Depositor as assignee of the
Seller with respect to the Seller's rights under the Transfer Agreements. The
foregoing sale, transfer, assignment and set over does not and is not intended
to result in a creation of an assumption by the Trustee of any obligation of the
Depositor or any other Person in connection with the Mortgage Loans or any
agreement or instrument relating thereto, except as specifically set forth
herein. 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 either (i) the New Jersey Home Ownership Act effective
November 27, 2003 or (ii) the New Mexico Home Loan Protection Act effective
January 1, 2004.
(b) (I) In connection with such transfer and assignment, the
Depositor has delivered or caused to be delivered to the Trustee or the
Custodian on behalf of the Trustee, for the benefit of the Certificateholders,
the following documents or instruments with respect to each BANA 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 the holders of the Banc of America
Funding Corporation Mortgage Pass-Through Certificates, Series 2004-A,
without recourse," with all necessary intervening endorsements showing a
complete chain of endorsement from the originator to the Trustee (each
such endorsement being sufficient to transfer all right, title and
interest of the party so endorsing, as noteholder or assignee thereof, in
and to that Mortgage Note);
(ii) except as provided below, the original recorded Mortgage with
evidence of a recording thereon, or if any such Mortgage has not been
returned from the applicable recording office or has been lost, or if such
public recording office retains the original recorded Mortgage, a copy of
such Mortgage certified by the Depositor as being a true and correct copy
of the Mortgage;
(iii) subject to the provisos at the end of this paragraph, a duly
executed Assignment of Mortgage to "Wachovia Bank, National Association,
as trustee for the holders of the Banc of America Funding Corporation
Mortgage Pass-Through Certificates, Series 2004-A" (which may be included
in a blanket assignment or assignments), together with, except as provided
below, originals of all interim recorded assignments of such Mortgage or a
copy of such interim assignment certified by the Depositor as being a true
and complete copy of the original recorded intervening assignments of
Mortgage (each such assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and transfer to
the assignee thereof, under the Mortgage to which the assignment relates);
provided that, if the related Mortgage has not been returned from the
applicable public recording office, such Assignment of Mortgage may
exclude the information to be provided by the recording office; and
provided, further, if the related Mortgage has been recorded in the name
of Mortgage Electronic Registration Systems, Inc. ("MERS") or its
designee, no Assignment of Mortgage in favor of the Trustee will be
required to be prepared or delivered and instead, BANA shall take all
actions as are necessary to cause the Trust to be shown as the owner of
the related BANA Mortgage Loan on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages
maintained by MERS;
(iv) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon, if any;
(v) the original or duplicate original mortgagee title insurance
policy and all riders thereto;
(vi) the original of any guarantee executed in connection with the
Mortgage Note;
(vii) for each BANA 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 BANA 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 BANA Mortgage Loan secured by Co-op Shares, the
originals of the following documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate
UCC financing statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the Trustee with
evidence of recording thereon (or in a form suitable for
recordation).
provided, however, that on the Closing Date, with respect to item (iii), the
Depositor has delivered to the Trustee or the Custodian on behalf of the Trustee
a copy of such Assignment of Mortgage in blank and has caused BANA 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 BANA Mortgage Loans, the Depositor cannot
deliver (A) the Mortgage, (B) all interim recorded assignments, (C) all
assumption, modification, consolidation or extension agreements, if any, or (D)
the lender's title policy (together with all riders thereto) satisfying the
requirements of clause (ii), (iii), (iv) or (v) above, respectively,
concurrently with the execution and delivery hereof because such document or
documents have not been returned from the applicable public recording office in
the case of clause (ii), (iii) or (iv) above, or because the title policy has
not been delivered to either BANA or the Depositor by the applicable title
insurer in the case of clause (v) above, the Depositor shall promptly deliver or
cause to be delivered to the Trustee or the Custodian on behalf of the Trustee,
in the case of clause (ii), (iii) or (iv) above, such Mortgage, such interim
assignment or such assumption, modification, consolidation or extension
agreement, as the case may be, with evidence of recording indicated thereon upon
receipt thereof from the public recording office, but in no event shall any such
delivery of any such documents or instruments be made later than one year
following the Closing Date, unless, in the case of clause (ii), (iii) or (iv)
above, there has been a continuing delay at the applicable recording office or,
in the case of clause (v), there has been a continuing delay at the applicable
insurer and the Depositor has delivered the Officer's Certificate to such effect
to the Trustee or the Custodian on behalf of the Trustee. The Depositor shall
forward or cause to be forwarded to the Trustee or the Custodian on behalf of
the Trustee (1) from time to time additional original documents evidencing an
assumption or modification of a BANA Mortgage Loan and (2) any other documents
required to be delivered by the Depositor or BANA to the Trustee or the
Custodian on the Trustee's behalf. In the event that the original Mortgage is
not delivered and in connection with the payment in full of the related BANA
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, BANA shall prepare, execute and deliver or cause to be prepared,
executed and delivered, on behalf of the Trust, such a document to the public
recording office.
As promptly as practicable subsequent to such transfer and
assignment, and in any event, within 30 days thereafter, BANA 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 BANA has not received the information
required to prepare such assignment in recordable form, BANA's obligation to do
so and to deliver the same for such recording shall be as soon as practicable
after receipt of such information and in any event within 30 days after the
receipt thereof and, no recording of an Assignment of Mortgage will be required
in a state if either (i) the Depositor furnishes to the Trustee and the
Securities Administrator an unqualified Opinion of Counsel reasonably acceptable
to the Trustee and the Securities Administrator to the effect that recordation
of such assignment is not necessary under applicable state law to preserve the
Trustee's interest in the related BANA Mortgage Loan against the claim of any
subsequent transferee of such BANA Mortgage Loan or any successor to, or
creditor of, the Depositor or the originator of such BANA 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. Set forth on Exhibit L attached hereto is a list of all
states where recordation is required by either Rating Agency to obtain the
initial ratings of the Certificates. The Trustee, Custodian and the Securities
Administrator may rely and shall be protected in relying upon the information
contained in such Exhibit L.
In the case of BANA 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 BANA to
deposit in the BANA Servicer Custodial Account the portion of such payment that
is required to be deposited in such Servicer Custodial Account pursuant to
Section 3.08.
(II) In connection with such transfer and assignment, the Depositor
has delivered or caused to be delivered to the Trustee, for the benefit of the
Certificateholders, the following documents or instruments with respect to each
Xxxxx Fargo 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-A, 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 Xxxxx Fargo 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) 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-A" (which may be included in a
blanket assignment or assignments), together with, except as provided
below, originals of all interim recorded assignments of such Mortgage or a
copy of such interim assignment certified by the Depositor as being a true
and complete copy of the original recorded intervening assignments of
Mortgage (each such assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and transfer to
the assignee thereof, under the Mortgage to which the assignment relates);
provided that, if the related Mortgage has not been returned from the
applicable public recording office, such Assignment of Mortgage may
exclude the information to be provided by the recording office; and
provided, further, if the related Mortgage has been recorded in the name
of MERS or its designee, no Assignment of Mortgage in favor of the Trustee
will be required to be prepared or delivered and instead, Xxxxx Fargo Bank
shall take all actions as are necessary to cause the Trust to be shown as
the owner of the related Xxxxx Fargo Mortgage Loan on the records of MERS
for purposes of the system of recording transfers of beneficial ownership
of mortgages maintained by MERS;
(iii) the originals of all assumption, modification, consolidation
or extension agreements, if any, with evidence of recording thereon, if
any;
(iv) for each Xxxxx Fargo Mortgage Loan secured by Co-op Shares, the
originals of the following documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate
UCC financing statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the Trustee with
evidence of recording thereon (or in a form suitable for
recordation).
(v) except as provided below, the original recorded Mortgage with
evidence of a recording thereon, or if any such Mortgage has not been
returned from the applicable recording office or has been lost, or if such
public recording office retains the original recorded Mortgage, a copy of
such Mortgage certified by the Depositor as being a true and correct copy
of the Mortgage;
provided, however, that on the Closing Date, with respect to item (ii), the
Depositor has delivered or caused to be delivered to the Trustee or the
Custodian on behalf of the Trustee a copy of such Assignment of Mortgage in
blank and has caused Xxxxx Fargo Bank to retain the completed Assignment of
Mortgage for recording as described below, unless such Mortgage has been
recorded in the name of MERS or its designee. In addition, if the Depositor is
unable to deliver or cause the delivery of any original Mortgage Note due to the
loss of such original Mortgage Note, the Depositor may deliver a copy of such
Mortgage Note, together with a lost note affidavit, and shall thereby be deemed
to have satisfied the document delivery requirements of this Section 2.01(b). As
set forth on Exhibit L attached hereto is a list of all states where recordation
is required by either Rating Agency to obtain the initial ratings of the
Certificates. The Securities Administrator, the Trustee and the Custodian may
rely and shall be protected in relying upon the information contained in such
Exhibit L.
(c) Following a Document Transfer Event, the Depositor shall cause
Xxxxx Fargo Bank to deliver, or cause to be delivered, with respect to each
Xxxxx Fargo Mortgage Loan, to the Trustee or the Custodian on behalf of the
Trustee, within 60 days copies (which may be in electronic form mutually agreed
upon by Xxxxx Fargo Bank and the Custodian) of the following additional
documents or instruments with respect to each Xxxxx Fargo Mortgage Loan;
provided, however, that originals of such documents or instruments shall be
delivered to the Custodian 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:
(i) The original recorded Mortgage with evidence of recordation
noted thereon or attached thereto, together with any addenda or riders
thereto, or a copy of such recorded Mortgage with such evidence of
recordation certified to be true and correct by the appropriate
governmental recording office; or a copy of such recorded Mortgage with
such evidence of recordation, or if the original Mortgage has been
submitted for recordation but has not been returned from the applicable
public recording office, a copy of the Mortgage certified by an officer of
Xxxxx Fargo Bank to be a true and correct copy of the original Mortgage
submitted for recordation;
(ii) The original of each assumption agreement, modification,
written assurance or substitution agreement pertaining to such Mortgage,
if any, or, if such document is in the process of being recorded, a copy
of such document, certified by an officer of Xxxxx Fargo Bank or by the
applicable title insurance company, closing agent, settlement agent,
escrow agent or closing attorney to be a true and correct copy of such
document transmitted for recordation, if any;
(iii) the original or duplicate original mortgagee title insurance
policy and all riders thereto;
(iv) the original of any guarantee executed in connection with the
Mortgage Note;
(v) for each Xxxxx Fargo 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 Xxxxx Fargo 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; and
(vi) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage.
If in connection with any Xxxxx Fargo Mortgage Loans, the Depositor
cannot deliver (A) the Mortgage, (B) all interim recorded assignments, (C) all
assumption, modification, consolidation or extension agreements, if any, or (D)
the lender's title policy (together with all riders thereto) satisfying the
requirements of clause (b)(II)(ii) and (iii) or clause (c)(i) or (iii) 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 (c)(i), (b)(II)(ii) or (b)(II)(iii)
above, or because the title policy has not been delivered to either Xxxxx Fargo
Bank, the Seller or the Depositor by the applicable title insurer in the case of
clause (c)(iii) above, the Depositor shall promptly deliver or cause to be
delivered to the Trustee or the Custodian on behalf of the Trustee, in the case
of clause (c)(i), (b)(II)(ii) or (b)(II)(iii) 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 (c)(i), (b)(II)(ii) or
(b)(II)(iii) above, there has been a continuing delay at the applicable
recording office or, in the case of clause (c)(iii), 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 (1)
from time to time additional original documents evidencing an assumption or
modification of a Xxxxx Fargo Mortgage Loan and (2) any other documents required
to be delivered by the Depositor or Xxxxx Fargo Bank to the Trustee or the
Custodian on the Trustee's behalf. In the event that the original Mortgage is
not delivered and in connection with the payment in full of the related Xxxxx
Fargo 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, Xxxxx Fargo Bank shall prepare, execute and deliver or cause to
be prepared, executed and delivered, on behalf of the Trust, such a document to
the public recording office.
As promptly as practicable subsequent to such transfer and
assignment, in any event, within 30 days thereafter, Xxxxx Fargo Bank 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 Xxxxx Fargo Bank has not
received the information required to prepare such assignment in recordable form,
Xxxxx Fargo Bank's obligation to do so and to deliver the same for such
recording shall be as soon as practicable after receipt of such information and
in any event within 30 days after the receipt thereof and, no recording of an
Assignment of Mortgage will be required in a state if either (i) the Depositor
furnishes to the Trustee and the Securities Administrator an unqualified Opinion
of Counsel reasonably acceptable to the Trustee and the Securities Administrator
to the effect that recordation of such assignment is not necessary under
applicable state law to preserve the Trustee's interest in the related Xxxxx
Fargo Mortgage Loan against the claim of any subsequent transferee of such Xxxxx
Fargo Mortgage Loan or any successor to, or creditor of, the Depositor or the
originator of such Xxxxx Fargo Mortgage Loan or (ii) the recordation of an
Assignment of Mortgage in such state is not required by either Rating Agency in
order to obtain the initial ratings on the Certificates on the Closing Date.
In the case of Xxxxx Fargo 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
Xxxxx Fargo Bank to deposit in the Xxxxx Fargo Servicer Custodial Account the
portion of such payment that is required to be deposited in such Servicer
Custodial Account pursuant to Section 3.08.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.
Subject to the provisions of the following paragraph, the Trustee declares that
it, or the Custodian as its agent, will hold the documents referred to in
Section 2.01(b) (and Section 2.01(c), after the occurrence of a Document
Transfer Event) and the other documents delivered to it constituting the Owner
Mortgage Files or Retained Mortgage Files (after the occurrence of a Document
Transfer Event), 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 and the Custodian shall deliver to the Depositor and the
applicable Servicer a certification in the form of Exhibit M-1 and Exhibit M-2,
respectively, hereto (an "Initial Certification") to the effect that, except as
may be specified in a list of exceptions attached thereto, the Trustee (with
respect only to those Mortgage Loans listed on Schedule I to the Initial
Certification) or the Custodian (with respect to all Mortgage Loans other than
those Mortgage Loans listed on Schedule I to the Initial Certification) has
received the original Mortgage Note relating to the applicable Mortgage Loans.
Within 90 days after the execution and delivery of this Agreement,
the Trustee shall review, or cause the Custodian to review, the Owner Mortgage
Files in its possession, and shall deliver or cause the Custodian to deliver to
the Depositor and the applicable Servicer a certification in the form of Exhibit
N hereto (the "Final Certification") to the effect that, as to each Mortgage
Loan listed in the Mortgage Loan Schedule, except as may be specified in a list
of exceptions attached to such Final Certification, such Owner Mortgage File
contains all of the items required to be delivered pursuant to Section 2.01(b).
If, in the course of such review, the Trustee or the Custodian finds
any document constituting a part of an Owner Mortgage File (and Retained
Mortgage File, if required pursuant to Section 2.01(c) hereof) which does not
meet the requirements of Section 2.01(b) (or the requirements of Section 2.01(c)
hereof, in the case of a Retained Mortgage File) or is omitted from such Owner
Mortgage File (or Retained Mortgage File, if applicable) or if the Depositor,
the related Servicer, the Trustee, the Securities Administrator or the Custodian
discovers a breach by the Depositor, Transferor or the Seller of any
representation, warranty or covenant under this Agreement, the Transfer
Agreements or the Mortgage Loan Purchase Agreement in respect of any Mortgage
Loan and such breach materially adversely affects such Mortgage Loan or the
interest therein of the Certificateholders (provided that any such breach that
causes the Mortgage Loan not to be a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code shall be deemed to materially and adversely
affect the interests of the Certificateholders), then such party shall promptly
so notify or cause the Custodian to promptly so notify the related Servicer, the
Seller, the Transferor and the Depositor of such failure to meet the
requirements of Section 2.01 or of such breach and request that the Transferor
(in the case of the Xxxxx Fargo Mortgage Loans) or the Seller (in the case of
the BANA Mortgage Loans), deliver such missing documentation or cure such defect
or breach within 90 days of its discovery or its receipt of notice of any such
failure to meet the requirements of Section 2.01 or of such breach. If the
Seller or the Transferor, as applicable, does not deliver such missing document
or, the Seller, Transferor or Depositor does not cure such defect or breach in
all material respects during such period, the Trustee shall enforce the
Depositor's, Transferor's or Seller's obligation, as the case may be, under this
Agreement, the Transfer Agreements or the Mortgage Loan Purchase Agreement, as
applicable, and cause the Depositor, Transferor or Seller, as applicable, to (a)
substitute for the related Mortgage Loan a Substitute Mortgage Loan, which
substitution shall be accomplished in the manner and subject to the conditions
set forth below or (b) purchase such Mortgage Loan from the Trust at the
Repurchase Price for such Mortgage Loan; provided, however, that in no event
shall such a substitution occur more than two years from the Closing Date;
provided, further, that such substitution or repurchase must occur within 90
days of when such defect was discovered if such defect will cause the Mortgage
Loan not to be a "qualified mortgage" within the meaning of Section 860G(a)(3)
of the Code.
In performing any such review, the Trustee or the Custodian may
conclusively rely on the purported genuineness of any such document and any
signature thereon. It is understood that the scope of the Trustee's or the
Custodian's review of the Owner Mortgage Files (or Retained Mortgage File, if
applicable) is limited solely to confirming that the documents listed in Section
2.01 have been received and further confirming that any and all documents
delivered pursuant to Section 2.01 appear on their face to have been executed
and relate to the Mortgage Loans identified in the Mortgage Loan Schedule based
solely upon the review of items (i) and (xi) in the definition of Mortgage Loan
Schedule. Neither the Trustee nor the Custodian shall have any responsibility
for determining whether any document is valid and binding, whether the text of
any assignment or endorsement is in proper or recordable form, whether any
document has been recorded in accordance with the requirements of any applicable
jurisdiction, or whether a blanket assignment is permitted in any applicable
jurisdiction.
In the event of a discovery of a breach of any representation or
warranty of the Transferor or the Seller, the Trustee shall enforce the rights
of the Trust under the Transfer Agreements and the Mortgage Loan Purchase
Agreement for the benefit of the Certificateholders. In the event of a breach of
the representations or warranties with respect to the Mortgage Loans set forth
in the Transfer Agreements, the Trustee shall enforce the right of the Trust to
be indemnified for such breach of representation or warranty. In addition, if a
breach of the representation set forth in clause (k) of paragraph 3 or clauses
(f) and (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 "Reimbursement Amount"). It is understood and agreed that,
except for any indemnification provided in the Transfer Agreements and the
payment of any Reimbursement Amount, the obligation of the Transferor or the
Seller to cure or to repurchase (or to substitute for) any Mortgage Loan as to
which a document is missing, a material defect in a constituent document exists
or as to which such a breach has occurred and is continuing shall constitute the
sole remedy against a Transferor or the Seller in respect of such omission,
defect or breach available to the Trustee on behalf of the Certificateholders.
With respect to the representations and warranties set forth in the
Mortgage Loan Purchase Agreement that are made to the best of the Seller's
knowledge or as to which the Seller had no knowledge, if it is discovered by the
Depositor, the related Servicer, the Trustee or the Custodian that the substance
of such representation or warranty is inaccurate and such inaccuracy materially
and adversely affects the interest of the Certificateholders in the related
Mortgage Loan then, notwithstanding the Seller's lack of knowledge with respect
to the substance of such representation or warranty being inaccurate as the time
the representation or warranty was made, such inaccuracy shall be deemed a
breach of the applicable representation or warranty.
It is understood and agreed that the representations and warranties
set forth in the Mortgage Loan Purchase Agreement shall survive delivery of the
Owner Mortgage Files (or Retained Mortgage Files, if applicable) to the Trustee
or the Custodian and shall inure to the benefit of the Certificateholders
notwithstanding any restrictive or qualified endorsement or assignment. It is
understood and agreed that the obligations of the Seller set forth in this
Section 2.02 to cure, substitute for or repurchase a Mortgage Loan pursuant to
the Mortgage Loan Purchase Agreement constitute the sole remedies available to
the Certificateholders and to the Trustee on their behalf respecting a breach of
the representations and warranties contained in the Mortgage Loan Purchase
Agreement.
The representations and warranties of the Transferor with respect to
the Mortgage Loans in the Transfer Agreements, which have been assigned to the
Trustee hereunder, were made as of the date specified in the Transfer
Agreements. To the extent that any fact, condition or event with respect to a
Xxxxx Fargo Mortgage Loan constitutes a breach of both (i) a representation or
warranty of the Transferor under the Transfer Agreements and (ii) a
representation or warranty of the Seller under the Mortgage Loan Purchase
Agreement, the only right or remedy of the Trustee or of any Certificateholder
shall be the Trustee's right to enforce the obligations of the Transferor under
any applicable representation or warranty made by it. The Trustee acknowledges
that the Seller shall have no obligation or liability with respect to any breach
of a representation or warranty made by it with respect to a Xxxxx Fargo
Mortgage Loan if the fact, condition or event constituting such breach also
constitutes a breach of a representation or warranty made by the Transferor in
the Transfer Agreements, without regard to whether the Transferor fulfills its
contractual obligations in respect of such representation or warranty. The
Trustee further acknowledges that the Depositor shall have no obligation or
liability with respect to any breach of any representation or warranty with
respect to the Mortgage Loans (except as set forth in Section 2.04) under any
circumstances. Xxxxx Fargo Bank hereby acknowledges that its representations and
warranties under the Transfer Agreements, and the Seller's rights and remedies
under the Transfer Agreements, have been assigned to the Trustee for the benefit
of the Certificateholders.
With respect to each Substitute Mortgage Loan, the Transferor or the
Seller, as applicable, shall deliver to the Trustee or the 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 applicable 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 such Servicer shall deliver the amended
Mortgage Loan Schedule to the Securities Administrator, the Trustee and the
Custodian. Upon such substitution, each Substitute Mortgage Loan shall be
subject to the terms of this Agreement in all respects, and the Seller or
Transferor, as applicable, shall be deemed to have made to the Trustee with
respect to such Substitute Mortgage Loan, as of the date of substitution, the
representations and warranties made pursuant to the Transfer Agreements and/or
the Mortgage Loan Purchase Agreement, as applicable. Upon any such substitution
and the deposit to the Certificate Account of any required Substitution
Adjustment Amount (as described in the next paragraph) and receipt of a Request
for Release, the Trustee shall release, or shall direct the Custodian to
release, the Owner Mortgage File (or the Retained Mortgage File, if applicable)
relating to such Defective Mortgage Loan to the Depositor and shall execute and
deliver at the Depositor's direction such instruments of transfer or assignment
prepared by the Depositor, in each case without recourse, as shall be necessary
to vest title in the Depositor, or its designee, to the Trustee's interest in
any Defective Mortgage Loan substituted for pursuant to this Section 2.02.
For any month in which the Seller or the Transferor, as applicable,
substitutes one or more Substitute Mortgage Loans for one or more Defective
Mortgage Loans, the amount (if any) by which the aggregate principal balance of
all such Substitute Mortgage Loans as of the date of substitution is less than
the aggregate Stated Principal Balance of all such Defective Mortgage Loans
(after application of the principal portion of the Monthly Payments due in the
month of substitution) (the "Substitution Adjustment Amount") plus an amount
equal to the aggregate of any unreimbursed Advances with respect to such
Defective Mortgage Loans shall be remitted to the Certificate Account by the
Seller or the Transferor, as applicable, on or before the Remittance Date for
the Distribution Date in the month succeeding the calendar month during which
the related Mortgage Loan is required to be purchased or replaced hereunder.
The Trustee shall retain or shall cause the Custodian to retain
possession and custody of each Owner Mortgage File (and Retained Mortgage File,
if applicable) in accordance with and subject to the terms and conditions set
forth herein. Each Servicer shall promptly deliver to the Trustee or the
Custodian on behalf of the Trustee, upon the execution or, in the case of
documents requiring recording, receipt thereof, the originals of such other
documents or instruments constituting the Owner Mortgage File (or Retained
Mortgage File) as come into such 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 Owner Mortgage File should include any of the documents specified in
(1)(a) Section 2.01(b)(I)(iv), (vi), (vii) and (viii) and (ix) with respect to
the BANA Mortgage Loans and (b) Section 2.01(b)(II)(iii) and (iv) with respect
to the Xxxxx Fargo Mortgage Loans, or (2) any Retained Mortgage File should
include any of the documents specified in Section 2.01(c) (iv), (v) and (vi).
Section 2.03 Representations, Warranties and Covenants of the
Servicers.
(a) BANA hereby makes the following representations and warranties
to the Depositor, the Securities Administrator and the Trustee, as of the
Closing Date:
(i) BANA is a national banking association duly organized, validly
existing and in good standing under the federal laws of the United States
of America and has all licenses necessary to carry on its business as now
being conducted and is licensed, qualified and in good standing in each of
the states where a Mortgaged Property is located if the laws of such state
require licensing or qualification in order to conduct business of the
type conducted by BANA. BANA 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
BANA 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 BANA, 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 BANA to make this Agreement valid and
binding upon BANA 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 BANA 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 BANA and will not
result in the breach of any term or provision of the charter or by-laws of
BANA 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 BANA or its property is subject, or result in
the violation of any law, rule, regulation, order, judgment or decree to
which BANA or its property is subject.
(iv) There is no action, suit, proceeding or investigation pending
or, to the best knowledge of BANA, threatened against BANA which, either
individually or in the aggregate, would result in any material adverse
change in the business, operations, financial condition, properties or
assets of BANA, or in any material impairment of the right or ability of
BANA to carry on its business substantially as now conducted or which
would draw into question the validity of this Agreement or the BANA
Mortgage Loans or of any action taken or to be taken in connection with
the obligations of BANA contemplated herein, or which would materially
impair the ability of BANA to perform under the terms of this Agreement.
(b) Xxxxx Fargo Bank hereby makes the following representations and
warranties to the Depositor, the Securities Administrator and the Trustee, as of
the Closing Date:
(i) Xxxxx Fargo Bank is a national banking association duly
organized, validly existing and in good standing under the federal laws of
the United States of America and has all licenses necessary to carry on
its business as now being conducted and is licensed, qualified and in good
standing in each of the states where a Mortgaged Property is located if
the laws of such state require licensing or qualification in order to
conduct business of the type conducted by Xxxxx Fargo Bank. Xxxxx Fargo
Bank 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 Xxxxx Fargo Bank 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 Xxxxx Fargo Bank, 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 Xxxxx
Fargo Bank to make this Agreement valid and binding upon Xxxxx Fargo Bank
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 Xxxxx Fargo Bank 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 Xxxxx Fargo Bank and
will not result in the breach of any term or provision of the articles of
association or by-laws of Xxxxx Fargo Bank 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 Xxxxx
Fargo Bank or its property is subject, or result in the violation of any
law, rule, regulation, order, judgment or decree to which Xxxxx Fargo Bank
or its property is subject.
(iv) There is no action, suit, proceeding or investigation pending
or, to the best knowledge of Xxxxx Fargo Bank, threatened against Xxxxx
Fargo Bank which, either individually or in the aggregate, would result in
any material adverse change in the business, operations, financial
condition, properties or assets of Xxxxx Fargo Bank, or in any material
impairment of the right or ability of Xxxxx Fargo Bank to carry on its
business substantially as now conducted or which would draw into question
the validity of this Agreement or the Xxxxx Fargo Mortgage Loans or of any
action taken or to be taken in connection with the obligations of Xxxxx
Fargo Bank contemplated herein, or which would materially impair the
ability of Xxxxx Fargo Bank 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 Owner Mortgage Files (or Retained
Mortgage Files, if applicable) to the Trustee or the Custodian on behalf of the
Trustee for the benefit of the Certificateholders.
Section 2.04 Representations and Warranties of the Depositor as to
the Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee with
respect to the Mortgage Loans or each Mortgage Loan, as the case may be, as of
the date hereof or such other date set forth herein that as of the Closing Date:
(i) Immediately prior to the transfer and assignment contemplated
herein, the Depositor was the sole owner and holder of the Mortgage Loans.
The Mortgage Loans were not assigned or pledged by the Depositor and the
Depositor had good and marketable title thereto, and the Depositor had
full right to transfer and sell the Mortgage Loans to the Trustee free and
clear of any encumbrance, participation interest, lien, equity, pledge,
claim or security interest and had full right and authority subject to no
interest or participation in, or agreement with any other party to sell or
otherwise transfer the Mortgage Loans.
(ii) As of the Closing Date, the Depositor has transferred all
right, title and interest in the Mortgage Loans to the Trustee on behalf
of the Trust.
(iii) As of the Closing Date, the Depositor has not transferred the
Mortgage Loans to the Trustee on behalf of the Trust with any intent to
hinder, delay or defraud an of its creditors.
It is understood and agreed that the representations and warranties
set forth in this Section 2.04 shall survive delivery of the respective Owner
Mortgage Files (or Retained Mortgage Files, if applicable) to the Trustee or the
Custodian and shall inure to the benefit of the Trustee, notwithstanding any
restrictive or qualified endorsement or assignment.
Section 2.05 Designation of Interests in the 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-A-LR Certificate as the single class of "residual
interest" in the Lower-Tier REMIC for the purposes of Code Sections 860G(a)(1)
and 860G(a)(2), respectively.
Section 2.06 Designation of Start-up Day. The Closing Date is hereby
designated as the "start-up day" of each of the Upper-Tier REMIC and Lower-Tier
REMIC within the meaning of Section 860G(a)(9) of the Code.
Section 2.07 REMIC Certificate Maturity Date. Solely for purposes of
satisfying Section 1.860G-1(a)(4)(iii) of the Treasury Regulations, the "latest
possible maturity date" of the regular interests in the Upper-Tier REMIC and
Lower-Tier REMIC is September 25, 2034.
Section 2.08 Execution and Delivery of Certificates. The Securities
Administrator (i) acknowledges the issuance of and hereby declares that it holds
the Uncertificated Lower-Tier Interests on behalf of the Upper-Tier REMIC and
the Certificateholders and (ii) has executed and delivered to or upon the order
of the Depositor, in exchange for the Mortgage Loans and Uncertificated
Lower-Tier Interests together with all other assets included in the definition
of "Trust Estate," receipt of which, together with the Uncertificated Lower-Tier
Interests, is hereby acknowledged, the Certificates in authorized denominations
which evidence ownership of the entire Trust Estate.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicers to Service Mortgage Loans. For and on behalf
of the Certificateholders, BANA shall service and administer the BANA Mortgage
Loans and Xxxxx Fargo Bank shall service and administer the Xxxxx Fargo Mortgage
Loans, each in accordance with the terms of this Agreement, Customary Servicing
Procedures, applicable law and the terms of the Mortgage Notes and Mortgages. In
connection with such servicing and administration, each Servicer shall have full
power and authority, acting alone and/or through Subservicers as provided in
Section 3.02, to do or cause to be done any and all things that it may deem
necessary or desirable in connection with such servicing and administration
including, but not limited to, the power and authority, subject to the terms
hereof, (a) to execute and deliver, on behalf of the Certificateholders, the
Securities Administrator and the Trustee, customary consents or waivers and
other instruments and documents, (b) to consent, with respect to the Mortgage
Loans it services, to transfers of any Mortgaged Property and assumptions of the
Mortgage Notes and related Mortgages (but only in the manner provided in this
Agreement), (c) to collect any Insurance Proceeds and other Liquidation Proceeds
relating to the Mortgage Loans it services, and (d) to effectuate foreclosure or
other conversion of the ownership of the Mortgaged Property securing any
Mortgage Loan it services. Each Servicer shall represent and protect the
interests of the Trust in the same manner as it protects its own interests in
mortgage loans in its own portfolio in any claim, proceeding or litigation
regarding a Mortgage Loan and shall not make or permit any modification, waiver
or amendment of any term of any Mortgage Loan, except as provided pursuant to
Section 3.21. Without limiting the generality of the foregoing, each Servicer,
in its own name or in the name of any Subservicer or the Depositor, the
Securities Administrator and the Trustee, is hereby authorized and empowered by
the Depositor, the Securities Administrator and the Trustee, when such Servicer
or any Subservicer, as the case may be, believes it appropriate in its
reasonable judgment, to execute and deliver, on behalf of the Trustee, the
Securities Administrator, the Depositor, the Certificateholders or any of them,
any and all instruments of satisfaction or cancellation, or of partial or full
release or discharge, and all other comparable instruments, with respect to the
Mortgage Loans it services, and with respect to the related Mortgaged Properties
held for the benefit of the Certificateholders. Each Servicer shall prepare and
deliver to the Depositor and/or the Trustee and/or the Securities Administrator
such documents requiring execution and delivery by any or all of them as are
necessary or appropriate to enable such Servicer to service and administer the
Mortgage Loans it services to the extent that such Servicer is not permitted to
execute and deliver such documents pursuant to the preceding sentence. Upon
receipt of such documents, the Depositor and/or the Trustee and/or the
Securities Administrator, upon the direction of the related Servicer, shall
promptly execute such documents and deliver them to the related Servicer.
In accordance with the standards of the preceding paragraph, each
Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the payment of taxes and assessments on the Mortgaged
Properties relating to the Mortgage Loans it services, which Servicing Advances
shall be reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11.
The costs incurred by the Servicers, if any, in effecting the timely payments of
taxes and assessments on the Mortgaged Properties and related insurance premiums
shall not, for the purpose of calculating monthly distributions to the
Certificateholders, be added to the Stated Principal Balances of the related
Mortgage Loans, notwithstanding that the terms of such Mortgage Loans so permit.
The relationship of each Servicer (and of any successor to either
Servicer as servicer under this Agreement) to the Trustee and the Securities
Administrator under this Agreement is intended by the parties to be that of an
independent contractor and not that of a joint venturer, partner or agent.
Section 3.02 Subservicing; Enforcement of the Obligations of the
Servicers.
(a) Either Servicer may arrange for the subservicing of any Mortgage
Loan it services by a Subservicer pursuant to a Subservicing Agreement;
provided, however, that such subservicing arrangement and the terms of the
related Subservicing Agreement must provide for the servicing of such Mortgage
Loan in a manner consistent with the servicing arrangements contemplated
hereunder. Notwithstanding the provisions of any Subservicing Agreement, any of
the provisions of this Agreement relating to agreements or arrangements between
a Servicer and a Subservicer or reference to actions taken through a Subservicer
or otherwise, such Servicer shall remain obligated and liable to the Depositor,
the Securities Administrator, the Trustee and the Certificateholders for the
servicing and administration of the Mortgage Loans it services in accordance
with the provisions of this Agreement without diminution of such obligation or
liability by virtue of such Subservicing Agreements or arrangements or by virtue
of indemnification from the Subservicer and to the same extent and under the
same terms and conditions as if such Servicer alone were servicing and
administering those Mortgage Loans. All actions of each Subservicer performed
pursuant to the related Subservicing Agreement shall be performed as agent of
the related Servicer with the same force and effect as if performed directly by
such Servicer.
(b) For purposes of this Agreement, each Servicer shall be deemed to
have received any collections, recoveries or payments with respect to the
Mortgage Loans it services that are received by a Subservicer regardless of
whether such payments are remitted by the Subservicer to such Servicer.
(c) As part of its servicing activities hereunder, each Servicer,
for the benefit of the Trustee, the Securities Administrator and the
Certificateholders, shall use its best reasonable efforts to enforce the
obligations of each Subservicer engaged by such Servicer under the related
Subservicing Agreement, to the extent that the non-performance of any such
obligation would have a material and adverse effect on a Mortgage Loan. Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of Subservicing Agreements and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time as the related Servicer, in its good faith business judgment, would require
were it the owner of the related Mortgage Loans. The related Servicer shall pay
the costs of such enforcement at its own expense, and shall be reimbursed
therefor only (i) from a general recovery resulting from such enforcement to the
extent, if any, that such recovery exceeds all amounts due in respect of the
related Mortgage Loan or (ii) from a specific recovery of costs, expenses or
attorneys fees against the party against whom such enforcement is directed.
(d) Any Subservicing Agreement entered into by a Servicer shall
provide that it may be assumed or terminated by the Securities Administrator, if
the Securities Administrator has assumed the duties of such Servicer, or any
successor Servicer, at the Securities Administrator's or successor Servicer's
option, as applicable, without cost or obligation to the assuming or terminating
party or the Trust Estate, upon the assumption by such party of the obligations
of such Servicer pursuant to Section 8.05.
Any Subservicing Agreement, and any other transactions or services
relating to the Mortgage Loans involving a Subservicer, shall be deemed to be
between the related Servicer and such Subservicer alone, and the Trustee, the
Securities Administrator and the Certificateholders shall not be deemed parties
thereto and shall have no claims or rights of action against, rights,
obligations, duties or liabilities to or with respect to the Subservicer or its
officers, directors or employees, except as set forth in Section 3.01.
Section 3.03 Fidelity Bond; Errors and Omissions Insurance.
Each Servicer shall maintain, at its own expense, a blanket fidelity
bond and an errors and omissions insurance policy, with broad coverage on all
officers, employees or other persons acting in any capacity requiring such
persons to handle funds, money, documents or papers relating to the Mortgage
Loans it services. These policies must insure such Servicer against losses
resulting from dishonest or fraudulent acts committed by such Servicer's
personnel, any employees of outside firms that provide data processing services
for such Servicer, and temporary contract employees or student interns. Such
fidelity bond shall also protect and insure such Servicer against losses in
connection with the release or satisfaction of a Mortgage Loan without having
obtained payment in full of the indebtedness secured thereby. No provision of
this Section 3.03 requiring such fidelity bond and errors and omissions
insurance shall diminish or relieve such Servicer from its duties and
obligations as set forth in this Agreement. The minimum coverage under any such
bond and insurance policy shall be at least equal to the corresponding amounts
required by FNMA in the FNMA Servicing Guide or by FHLMC in the FHLMC Sellers' &
Servicers' Guide, as amended or restated from time to time, or in an amount as
may be permitted to such Servicer by express waiver of FNMA or FHLMC.
Section 3.04 Access to Certain Documentation.
Each Servicer shall provide to the OTS and the FDIC and to
comparable regulatory authorities supervising Holders of Subordinate
Certificates and the examiners and supervisory agents of the OTS, the FDIC and
such other authorities, access to the documentation required by applicable
regulations of the OTS and the FDIC with respect to the Mortgage Loans. Such
access shall be afforded without charge, but only upon reasonable and prior
written request and during normal business hours at the offices designated by
such Servicer. Nothing in this Section 3.04 shall limit the obligation of such
Servicer to observe any applicable law and the failure of such Servicer to
provide access as provided in this Section 3.04 as a result of such obligation
shall not constitute a breach of this Section 3.04.
Section 3.05 Maintenance of Primary Mortgage Insurance Policy;
Claims.
With respect to each Mortgage Loan with a Loan-to-Value Ratio in
excess of 80% or such other Loan-to-Value Ratio as may be required by law, the
Servicer responsible for servicing such Mortgage Loan shall, without any cost to
the Trust Estate, maintain or cause the Mortgagor to maintain in full force and
effect a Primary Mortgage Insurance Policy insuring that portion of the Mortgage
Loan in excess of a percentage in conformity with FNMA requirements. The related
Servicer shall pay or shall cause the Mortgagor to pay the premium thereon on a
timely basis, at least until the Loan-to-Value Ratio of such Mortgage Loan is
reduced to 80% or such other Loan-to-Value Ratio as may be required by law. If
such Primary Mortgage Insurance Policy is terminated, the related Servicer shall
obtain from another insurer a comparable replacement policy, with a total
coverage equal to the remaining coverage of such terminated Primary Mortgage
Insurance Policy. If the insurer shall cease to be an insurer acceptable to
FNMA, the related Servicer shall notify the Securities Administrator and the
Trustee in writing, it being understood that the such Servicer shall not have
any responsibility or liability for any failure to recover under the Primary
Mortgage Insurance Policy for such reason. If such Servicer determines that
recoveries under the Primary Mortgage Insurance Policy are jeopardized by the
financial condition of the insurer, such Servicer shall obtain from another
insurer which meets the requirements of this Section 3.05 a replacement
insurance policy. A Servicer shall not take any action that would result in
noncoverage under any applicable Primary Mortgage Insurance Policy of any loss
that, but for the actions of such Servicer, would have been covered thereunder.
In connection with any assumption or substitution agreement entered into or to
be entered into pursuant to Section 3.13, the related Servicer shall promptly
notify the insurer under the related Primary Mortgage Insurance Policy, if any,
of such assumption or substitution of liability in accordance with the terms of
such Primary Mortgage Insurance Policy and shall take all actions which may be
required by such insurer as a condition to the continuation of coverage under
such Primary Mortgage Insurance Policy. If such Primary Mortgage Insurance
Policy is terminated as a result of such assumption or substitution of
liability, the related Servicer shall obtain a replacement Primary Mortgage
Insurance Policy as provided above.
In connection with its activities as servicer, each Servicer agrees
to prepare and present, on behalf of itself, the Trustee, the Securities
Administrator and the Certificateholders, claims to the insurer under any
Primary Mortgage Insurance Policy in a timely fashion in accordance with the
terms of such Primary Mortgage Insurance Policy and, in this regard, to take
such action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policy respecting a defaulted Mortgage Loan. Pursuant to Section
3.09(a), any amounts collected by a Servicer under any Primary Mortgage
Insurance Policy shall be deposited in the related Escrow Account, subject to
withdrawal pursuant to Section 3.09(b).
Each Servicer will comply with all provisions of applicable state
and federal law relating to the cancellation of, or collection of premiums with
respect to, Primary Mortgage Insurance, including, but not limited to, the
provisions of the Homeowners Protection Act of 1998, and all regulations
promulgated thereunder, as amended from time to time.
Section 3.06 Rights of the Depositor, the Securities Administrator
and the Trustee in Respect of the Servicers.
The Depositor may, but is not obligated to, enforce the obligations
of each Servicer hereunder and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of either Servicer hereunder and
in connection with any such defaulted obligation to exercise the related rights
of such Servicer hereunder; provided that a Servicer shall not be relieved of
any of its obligations hereunder by virtue of such performance by the Depositor
or its designee. Neither the Securities Administrator, the Trustee nor the
Depositor shall have any responsibility or liability for any action or failure
to act by a Servicer nor shall the Securities Administrator, the Trustee or the
Depositor be obligated to supervise the performance of a Servicer (or any
Subservicer) hereunder or otherwise.
Any Subservicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such shall be deemed to be between the Subservicer and the
applicable Servicer alone, and the Securities Administrator, the Trustee and
Certificateholders shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the Subservicer
except as set forth in Section 3.07. Each Servicer shall be solely liable for
all fees owed by it to any Subservicer, irrespective of whether such Servicer's
compensation pursuant to this Agreement is sufficient to pay such fees.
Section 3.07 Securities Administrator or Trustee to Act as Servicer.
If either Servicer shall for any reason no longer be a Servicer
hereunder (including by reason of an Event of Default), the Securities
Administrator, in the case of BANA, and the Trustee, in the case of Xxxxx Fargo
Bank, shall within 90 days of such time, assume, if it so elects, or shall
appoint a successor Servicer to assume, all of the rights and obligations of
such Servicer hereunder arising thereafter (except that the Securities
Administrator or the Trustee, as applicable, shall not be (a) liable for losses
of such Servicer pursuant to Section 3.12 or any acts or omissions of the
predecessor Servicer hereunder, (b) obligated to make Advances if it is
prohibited from doing so by applicable law or (c) deemed to have made any
representations and warranties of such Servicer hereunder). Any such assumption
shall be subject to Sections 7.02 and 8.05. If either Servicer shall for any
reason no longer be a Servicer (including by reason of any Event of Default),
the Securities Administrator, the Trustee or the successor Servicer, as
applicable, may elect to succeed to any rights and obligations of such Servicer
under each Subservicing Agreement or may terminate each Subservicing Agreement.
If it has elected to assume the Subservicing Agreement, the Securities
Administrator, the Trustee or the successor Servicer, as applicable, shall be
deemed to have assumed all of the related Servicer's interest therein and to
have replaced such Servicer as a party to any Subservicing Agreement entered
into by such Servicer as contemplated by Section 3.02 to the same extent as if
the Subservicing Agreement had been assigned to the assuming party except that
such Servicer shall not be relieved of any liability or obligations under any
such Subservicing Agreement.
Each Servicer that is no longer a Servicer hereunder shall, upon
request of the Securities Administrator or the Trustee, as applicable, but at
the expense of such predecessor Servicer, deliver to the assuming party all
documents and records relating to each Subservicing Agreement or substitute
servicing agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected or held by it and otherwise use its best efforts
to effect the orderly and efficient transfer of such substitute Subservicing
Agreement to the assuming party. The Securities Administrator or the Trustee, as
applicable, shall be entitled to be reimbursed from the predecessor Servicer (or
the Trust if the predecessor Servicer is unable to fulfill its obligations
hereunder) for all Servicing Transfer Costs.
Section 3.08 Collection of Mortgage Loan Payments; Servicer
Custodial Accounts and Certificate Account. (a) Continuously from the date
hereof until the principal and interest on all Mortgage Loans are paid in full,
each Servicer will proceed diligently, in accordance with this Agreement, to
collect all payments due under each of the Mortgage Loans it services when the
same shall become due and payable. Further, each Servicer will in accordance
with all applicable law and Customary Servicing Procedures ascertain and
estimate taxes, assessments, fire and hazard insurance premiums, mortgage
insurance premiums and all other charges with respect to the Mortgage Loans it
services that, as provided in any Mortgage, will become due and payable to the
end that the installments payable by the Mortgagors will be sufficient to pay
such charges as and when they become due and payable. Consistent with the
foregoing, either Servicer may in its discretion (i) waive any late payment
charge or any prepayment charge or penalty interest in connection with the
prepayment of a Mortgage Loan it services and (ii) extend the due dates for
payments due on a Mortgage Note for a period not greater than 120 days;
provided, however, that a Servicer cannot extend the maturity of any such
Mortgage Loan past the date on which the final payment is due on the latest
maturing Mortgage Loan as of the Cut-Off Date. In the event of any such
arrangement, such Servicer shall make Periodic Advances on the related Mortgage
Loan in accordance with the provisions of Section 3.20 during the scheduled
period in accordance with the amortization schedule of such Mortgage Loan
without modification thereof by reason of such arrangements. A Servicer shall
not be required to institute or join in litigation with respect to collection of
any payment (whether under a Mortgage, Mortgage Note or otherwise or against any
public or governmental authority with respect to a taking or condemnation) if it
reasonably believes that enforcing the provision of the Mortgage or other
instrument pursuant to which such payment is required is prohibited by
applicable law.
(b) BANA shall establish and maintain the BANA Custodial Account.
Xxxxx Fargo Bank shall establish and maintain the Xxxxx Fargo Custodial Account.
BANA shall deposit or cause to be deposited into the BANA Custodial Account and
Xxxxx Fargo Bank shall deposit or cause to be deposited into the Xxxxx Fargo
Custodial Account, both on a daily basis within one Business Day of receipt,
except as otherwise specifically provided herein, the following payments and
collections remitted by Subservicers or received by such Servicer in respect of
the Mortgage Loans it services subsequent to the Cut-Off Date (other than in
respect of principal and interest due on the Mortgage Loans on or before the
Cut-Off Date) and the following amounts required to be deposited hereunder with
respect to the Mortgage Loans it services:
(i) all payments on account of principal of such Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on such Mortgage Loans, net
of the Servicing Fee;
(iii) (A) all Insurance Proceeds and Liquidation Proceeds, other
than Insurance Proceeds to be (1) applied to the restoration or repair of
the Mortgaged Property, (2) released to the Mortgagor in accordance with
Customary Servicing Procedures or (3) required to be deposited to an
Escrow Account pursuant to Section 3.09(a), and other than any Excess
Proceeds and (B) any Insurance Proceeds released from an Escrow Account
pursuant to Section 3.09(b)(iv);
(iv) any amount required to be deposited by such Servicer pursuant
to Section 3.08(d) in connection with any losses on Permitted Investments
with respect to the such Servicer Custodial Account;
(v) any amounts required to be deposited by such Servicer pursuant
to Section 3.14;
(vi) all Repurchase Prices, all Substitution Adjustment Amounts and
all Reimbursement Amounts to the extent received by such Servicer;
(vii) Periodic Advances made by such Servicer pursuant to Section
3.20 and any Compensating Interest;
(viii) any Buy-Down Funds required to be deposited pursuant to
Section 3.23;
(ix) any Recovery; and
(x) any other amounts required to be deposited hereunder.
The foregoing requirements for deposits to the Servicer Custodial
Accounts by the Servicers shall be exclusive, it being understood and agreed
that, without limiting the generality of the foregoing, any Ancillary Income
need not be deposited by a Servicer. If a Servicer shall deposit in the related
Servicer Custodial Account any amount not required to be deposited, it may at
any time withdraw or direct the institution maintaining such Servicer Custodial
Account to withdraw such amount from such Servicer Custodial Account, any
provision herein to the contrary notwithstanding. Each Servicer Custodial
Account may contain funds that belong to one or more trust funds created for
mortgage pass-through certificates of other series and may contain other funds
respecting payments on mortgage loans belonging to the applicable Servicer or
serviced by such Servicer on behalf of others; provided that such commingling of
funds by BANA shall not be permitted at any time during which Fitch's senior
long-term unsecured debt rating of BANA is below "A." Notwithstanding such
commingling of funds, each Servicer shall keep records that accurately reflect
the funds on deposit in the applicable Servicer Custodial Account that have been
identified by it as being attributable to the Mortgage Loans it services. Each
Servicer shall maintain adequate records with respect to all withdrawals made
pursuant to this Section 3.08. All funds required to be deposited in a Servicer
Custodial Account shall be held in trust for the Certificateholders until
withdrawn in accordance with Section 3.11.
(c) The Securities Administrator shall establish and maintain, on
behalf of the Certificateholders, the Certificate Account, 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 the
following:
(i) the aggregate amount remitted by each Servicer to the Securities
Administrator pursuant to Section 3.11(a)(viii);
(ii) any amount paid by the Securities Administrator pursuant to
Section 3.08(d) in connection with any losses on Permitted Investments
with respect to the Certificate Account; and
(iii) any other amounts deposited hereunder which are required to be
deposited in the Certificate Account.
If a Servicer shall remit any amount not required to be remitted, it
may at any time direct the Securities Administrator to withdraw such amount from
the Certificate Account, any provision herein to the contrary notwithstanding.
Such direction may be accomplished by delivering an Officer's Certificate to the
Securities Administrator which describes the amounts deposited in error in the
Certificate Account. All funds required to be deposited in the Certificate
Account shall be held by the Securities Administrator in trust for the
Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 3.11. In no event shall the Securities
Administrator incur liability for withdrawals from the Certificate Account at
the direction of a Servicer.
(d) Each institution at which either Servicer Custodial Account or
the Certificate Account is maintained shall invest the funds therein as directed
in writing by BANA (in the case of the BANA Custodial Account), Xxxxx Fargo Bank
(in the case of the Xxxxx Fargo Custodial Account) or the Securities
Administrator (in the case of the Certificate Account) in Permitted Investments,
which shall mature not later than (i) in the case of either Servicer Custodial
Account, the Business Day next preceding the related Remittance Date (except
that if such Permitted Investment is an obligation of the institution that
maintains such account, then such Permitted Investment shall mature not later
than such Remittance Date) and (ii) in the case of the Certificate Account, the
Business Day next preceding the Distribution Date (except that if such Permitted
Investment is an obligation of the institution that maintains such account, then
such Permitted Investment shall mature not later than such Distribution Date)
and, in each case, shall not be sold or disposed of prior to its maturity. All
such Permitted Investments shall be made in the name of the Securities
Administrator, for the benefit of the Certificateholders. All Servicer Custodial
Account Reinvestment Income shall be for the benefit of the related Servicer as
part of its Servicing Compensation and shall be retained by it monthly as
provided herein. All income or gain (net of any losses) realized from any such
investment of funds on deposit in the Certificate Account shall be for the
benefit of the Securities Administrator as additional compensation and shall be
retained by it monthly as provided herein. The amount of any losses realized in
the BANA Custodial Account, the Xxxxx Fargo Custodial Account or the Certificate
Account incurred in any such account in respect of any such investments shall
promptly be deposited by BANA in the BANA Custodial Account, Xxxxx Fargo Bank in
the Xxxxx Fargo Custodial Account or by the Securities Administrator in the
Certificate Account, as applicable.
(e) A Servicer shall give notice to the Securities Administrator of
any proposed change of the location of the Servicer Custodial Account maintained
by such Servicer not later than 30 days and not more than 45 days prior to any
change thereof. The Securities Administrator shall give notice to the Trustee,
the Servicers, each Rating Agency and the Depositor of any proposed change of
the location of the Certificate Account not later than 30 days after and not
more than 45 days prior to any change thereof. The creation of any Servicer
Custodial Account shall be evidenced by a certification substantially in the
form of Exhibit F hereto. A copy of such certification shall be furnished to the
Securities Administrator.
(f) The Securities Administrator shall designate the Upper-Tier
Certificate Sub-Account as a sub-account of the Certificate Account. On each
Distribution Date (other than the Final Distribution Date, if such Final
Distribution Date is in connection with a purchase of the assets of the Trust
Estate by Xxxxx Fargo Bank, as a Servicer), the Securities Administrator shall,
from funds available on deposit in the Certificate Account, be deemed to deposit
into the Upper-Tier Certificate Sub-Account, the Lower-Tier Distribution Amount.
Section 3.09 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.
(a) To the extent required by the related Mortgage Note and not
violative of current law, each Servicer shall segregate and hold all funds
collected and received pursuant to each Mortgage Loan serviced by such Servicer
which constitute Escrow Payments in trust separate and apart from any of its own
funds and general assets and for such purpose shall establish and maintain one
or more escrow accounts (collectively, the "Escrow Account"), titled "[Insert
name of Servicer], in trust for registered holders of Banc of America Funding
Corporation Mortgage Pass-Through Certificates, Series 2004-A and various
Mortgagors." The Escrow Account shall be established with a commercial bank, a
savings bank or a savings and loan association that meets the guidelines set
forth by FNMA or FHLMC as an eligible institution for escrow accounts and which
is a member of the Automated Clearing House. In any case, the Escrow Account
shall be insured by the FDIC to the fullest extent permitted by law. Each
Servicer shall deposit in the appropriate Escrow Account on a daily basis, and
retain therein: (i) all Escrow Payments collected on account of the Mortgage
Loans serviced by such Servicer, (ii) all amounts representing proceeds of any
hazard insurance policy which are to be applied to the restoration or repair of
any related Mortgaged Property and (iii) all amounts representing proceeds of
any Primary Mortgage Insurance Policy. Nothing herein shall require either
Servicer to compel a Mortgagor to establish an Escrow Account in violation of
applicable law.
(b) Withdrawals of amounts so collected from the Escrow Accounts may
be made by the related Servicer only (i) to effect timely payment of taxes,
assessments, mortgage insurance premiums, fire and hazard insurance premiums,
condominium or PUD association dues, or comparable items constituting Escrow
Payments for the related Mortgage, (ii) to reimburse such Servicer out of
related Escrow Payments made with respect to a Mortgage Loan for any Servicing
Advance made by such Servicer pursuant to Section 3.09(c) with respect to such
Mortgage Loan, (iii) to refund to any Mortgagor any sums determined to be
overages, (iv) for transfer to the related Servicer Custodial Account upon
default of a Mortgagor or in accordance with the terms of the related Mortgage
Loan and if permitted by applicable law, (v) for application to restore or
repair the Mortgaged Property, (vi) to pay to the Mortgagor, to the extent
required by law, any interest paid on the funds deposited in the Escrow Account,
(vii) to pay to itself any interest earned on funds deposited in the Escrow
Account (and not required to be paid to the Mortgagor), (viii) to the extent
permitted under the terms of the related Mortgage Note and applicable law, to
pay late fees with respect to any Monthly Payment which is received after the
applicable grace period, (ix) to withdraw suspense payments that are deposited
into the Escrow Account, (x) to withdraw any amounts inadvertently deposited in
the Escrow Account or (xi) to clear and terminate the Escrow Account upon the
termination of this Agreement in accordance with Section 10.01. Any Escrow
Account shall not be a part of the Trust Estate.
(c) With respect to each Mortgage Loan it services, each Servicer
shall maintain accurate records reflecting the status of taxes, assessments and
other charges which are or may become a lien upon the Mortgaged Property and the
status of Primary Mortgage Insurance Policy premiums and fire and hazard
insurance coverage. Each Servicer shall obtain, from time to time, all bills for
the payment of such charges (including renewal premiums) and shall effect
payment thereof prior to the applicable penalty or termination date and at a
time appropriate for securing maximum discounts allowable, employing for such
purpose deposits of the Mortgagor in the Escrow Account, if any, which shall
have been estimated and accumulated by each Servicer in amounts sufficient for
such purposes, as allowed under the terms of the Mortgage. To the extent that a
Mortgage does not provide for Escrow Payments, the related Servicer shall
determine that any such payments are made by the Mortgagor. The related Servicer
assumes full responsibility for the timely payment of all such bills and shall
effect timely payments of all such bills irrespective of each Mortgagor's
faithful performance in the payment of same or the making of the Escrow
Payments. The related Servicer shall advance any such payments that are not
timely paid, but such Servicer shall be required so to advance only to the
extent that such Servicing Advances, in the good faith judgment of such
Servicer, will be recoverable by such Servicer out of Insurance Proceeds,
Liquidation Proceeds or otherwise.
Section 3.10 Access to Certain Documentation and Information
Regarding the Mortgage Loans.
Each Servicer shall afford the Securities Administrator and the
Trustee reasonable access to all records and documentation regarding the
Mortgage Loans serviced by such Servicer 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 applicable Servicer.
Upon reasonable advance notice in writing, each Servicer will
provide to each Certificateholder which is a savings and loan association, bank
or insurance company certain reports and reasonable access to information and
documentation regarding the Mortgage Loans serviced by such Servicer sufficient
to permit such Certificateholder to comply with applicable regulations of the
OTS or other regulatory authorities with respect to investment in the
Certificates; provided that such Servicer shall be entitled to be reimbursed by
each such Certificateholder for actual expenses incurred by such Servicer in
providing such reports and access.
Section 3.11 Permitted Withdrawals from the Servicer Custodial
Accounts and Certificate Account.
(a) Each Servicer may from time to time make withdrawals from the
applicable Servicer Custodial Account, for the following purposes:
(i) to pay to the related Servicer (to the extent not previously
retained), the Servicing Compensation to which it is entitled pursuant to
Section 3.17;
(ii) to reimburse the related Servicer for unreimbursed Advances
made by it, such right of reimbursement pursuant to this clause (ii) being
limited to amounts received on the Mortgage Loans in respect of which any
such Advance was made;
(iii) to reimburse the related Servicer for any Nonrecoverable
Advance previously made such right of reimbursement pursuant to this
clause (iii) being limited by amounts received on the Mortgage Loans in
respect of which any such Nonrecoverable Advance was made;
(iv) to reimburse the related Servicer for Insured Expenses from the
related Insurance Proceeds;
(v) to pay to the purchaser, with respect to each Mortgage Loan or
REO Property that has been purchased pursuant to Section 2.02, all amounts
received thereon after the date of such purchase;
(vi) to reimburse the related Servicer or the Depositor for expenses
incurred by any of them and reimbursable pursuant to Section 7.03;
(vii) to withdraw any amount deposited in the related Servicer
Custodial Account and not required to be deposited therein;
(viii) on or prior to the Remittance Date, to withdraw an amount
equal to the related Pool Distribution Amount, the related Securities
Administrator Fee and any other amounts due to the Securities
Administrator under this Agreement (other than pursuant to Section
3.11(b)(ii)) for such Distribution Date, to the extent on deposit, and
remit such amount in immediately available funds to the Securities
Administrator for deposit in the Certificate Account; and
(ix) to clear and terminate the related Servicer Custodial Account
upon termination of this Agreement pursuant to Section 10.01.
Each Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the related Servicer Custodial Account pursuant to clauses (i),
(ii), (iv) and (v). Each Servicer shall keep and maintain such separate
accounting for each Mortgage Loan it services in each Loan Group. Prior to
making any withdrawal from the related Servicer Custodial Account pursuant to
clause (iii), each Servicer shall deliver to the Securities Administrator an
Officer's Certificate of a Servicing Officer indicating the amount of any
previous Advance determined by such Servicer to be a Nonrecoverable Advance and
identifying the related Mortgage Loan(s) and their respective portions of such
Nonrecoverable Advance.
In connection with any failure by a Servicer to make any remittance
required to be made by such Servicer to the Certificate Account on the day and
by the time such remittance is required to be made under this Agreement (without
giving effect to any grace or cure period), such Servicer shall pay the
Securities Administrator for the account of the Securities Administrator
interest at the rate published in The Wall Street Journal as the "Prime Rate" on
any amount not timely remitted from and including the day such remittance was
required to be made to, but not including, the day on which such remittance was
actually made.
(b) The Securities Administrator shall withdraw funds from the
Certificate Account for distributions to Certificateholders in the manner
specified in this Agreement. In addition, the Securities Administrator may from
time to time make withdrawals from the Certificate Account for the following
purposes:
(i) to pay to itself the Securities Administrator Fee and any other
amounts due to the Securities Administrator and the Trustee under this
Agreement for the related Distribution Date;
(ii) to pay to itself as additional compensation, earnings on or
investment income with respect to funds in the Certificate Account;
(iii) to withdraw and return to the related Servicer any amount
deposited in the Certificate Account and not required to be deposited
therein; and
(iv) to clear and terminate the Certificate Account upon termination
of the Agreement pursuant to Section 10.01.
Section 3.12 Maintenance of Hazard Insurance.
Each Servicer shall cause to be maintained for each Mortgage Loan
serviced by such Servicer, fire and hazard insurance with extended coverage
customary in the area where the Mortgaged Property is located in an amount which
is at least equal to the lesser of (a) the full insurable value of the Mortgaged
Property or (b) the greater of (i) the outstanding principal balance owing on
the Mortgage Loan and (ii) an amount such that the proceeds of such insurance
shall be sufficient to avoid the application to the Mortgagor or loss payee of
any coinsurance clause under the policy. If the Mortgaged Property is in an area
identified in the Federal Register by the Federal Emergency Management Agency as
having special flood hazards (and such flood insurance has been made available)
the related Servicer will cause to be maintained a flood insurance policy
meeting the requirements of the current guidelines of the Federal Insurance
Administration and the requirements of FNMA or FHLMC. Each Servicer shall also
maintain on REO Property serviced by such Servicer, fire and hazard insurance
with extended coverage in an amount which is at least equal to the maximum
insurable value of the improvements which are a part of such property, liability
insurance and, to the extent required, flood insurance in an amount required
above. Any amounts collected by a Servicer under any such policies (other than
amounts to be deposited in an Escrow Account and applied to the restoration or
repair of the property subject to the related Mortgage or property acquired in
liquidation of the Mortgage Loan, or to be released to the Mortgagor in
accordance with Customary Servicing Procedures) shall be deposited in the
related Servicer Custodial Account, subject to withdrawal pursuant to Section
3.11(a). It is understood and agreed that no earthquake or other additional
insurance need be required by a Servicer of any Mortgagor or maintained on REO
Property, other than pursuant to such applicable laws and regulations as shall
at any time be in force and as shall require such additional insurance. All
policies required hereunder shall be endorsed with standard mortgagee clauses
with loss payable to the related Servicer, and shall provide for at least 30
days prior written notice of any cancellation, reduction in amount or material
change in coverage to such Servicer.
The hazard insurance policies for each Mortgage Loan secured by a
unit in a condominium development or planned unit development shall be
maintained with respect to such Mortgage Loan and the related development in a
manner which is consistent with FNMA requirements.
Notwithstanding the foregoing, either Servicer may maintain a
blanket policy insuring against hazard losses on all of the Mortgaged Properties
relating to the Mortgage Loans serviced by such Servicer in lieu of maintaining
the required hazard insurance policies for each Mortgage Loan and may maintain a
blanket policy insuring against special flood hazards in lieu of maintaining any
required flood insurance. Any such blanket policies shall (A) be consistent with
prudent industry standards, (B) name the related Servicer as loss payee, (C)
provide coverage in an amount equal to the aggregate unpaid principal balance on
the related Mortgage Loans without co-insurance, and (D) otherwise comply with
the requirements of this Section 3.12. Any such blanket policy may contain a
deductible clause; provided that if any Mortgaged Property is not covered by a
separate policy otherwise complying with this Section 3.12 and a loss occurs
with respect to such Mortgaged Property which loss would have been covered by
such a policy, the related Servicer shall deposit in the related Servicer
Custodial Account the difference, if any, between the amount that would have
been payable under a separate policy complying with this Section 3.12 and the
amount paid under such blanket policy.
Section 3.13 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
(a) Except as otherwise provided in this Section 3.13, when any
Mortgaged Property subject to a Mortgage has been conveyed by the Mortgagor, the
related Servicer shall use reasonable efforts, to the extent that it has actual
knowledge of such conveyance, to enforce any due-on-sale clause contained in any
Mortgage Note or Mortgage, to the extent permitted under applicable law and
governmental regulations, but only to the extent that such enforcement will not
adversely affect or jeopardize coverage under any Required Insurance Policy.
Notwithstanding the foregoing, a Servicer is not required to exercise such
rights with respect to a Mortgage Loan if the Person to whom the related
Mortgaged Property has been conveyed or is proposed to be conveyed satisfies the
terms and conditions contained in the Mortgage Note and Mortgage related thereto
and the consent of the mortgagee under such Mortgage Note or Mortgage is not
otherwise required under such Mortgage Note or Mortgage as a condition to such
transfer. If (i) the related Servicer is prohibited by law from enforcing any
such due-on-sale clause, (ii) coverage under any Required Insurance Policy would
be adversely affected, (iii) the Mortgage Note does not include a due-on-sale
clause or (iv) nonenforcement is otherwise permitted hereunder, the related
Servicer is authorized, subject to Section 3.13(b), to take or enter into an
assumption and modification agreement from or with the Person to whom such
Mortgaged Property has been or is about to be conveyed, pursuant to which such
Person becomes liable under the Mortgage Note and, unless prohibited by
applicable state law, the Mortgagor remains liable thereon; provided that the
Mortgage Loan shall continue to be covered (if so covered before the related
Servicer enters such agreement) by the applicable Required Insurance Policies.
The related Servicer, subject to Section 3.13(b), is also authorized with the
prior approval of the insurers under any Required Insurance Policies to enter
into a substitution of liability agreement with such Person, pursuant to which
the original Mortgagor is released from liability and such Person is substituted
as Mortgagor and becomes liable under the Mortgage Note. Notwithstanding the
foregoing, a Servicer shall not be deemed to be in default under this Section
3.13 by reason of any transfer or assumption which such Servicer reasonably
believes it is restricted by law from preventing, for any reason whatsoever.
(b) Subject to a Servicer's duty to enforce any due-on-sale clause
to the extent set forth in Section 3.13(a), in any case in which a Mortgaged
Property has been conveyed to a Person by a Mortgagor, and such Person is to
enter into an assumption agreement or modification agreement or supplement to
the Mortgage Note or Mortgage that requires the signature of the Trustee, or if
an instrument of release signed by the Trustee is required releasing the
Mortgagor from liability on the Mortgage Loan, the related Servicer shall
prepare and deliver or cause to be prepared and delivered to the Securities
Administrator, who will forward to the Trustee for signature and shall direct,
in writing, the Trustee to execute the assumption agreement with the Person to
whom the Mortgaged Property is to be conveyed and such modification agreement or
supplement to the Mortgage Note or Mortgage or other instruments as are
reasonable or necessary to carry out the terms of the Mortgage Note or Mortgage
or otherwise to comply with any applicable laws regarding assumptions or the
transfer of the Mortgaged Property to such Person. In no event shall the Trustee
incur liability for executing any document under this Section 3.13 at the
direction of a Servicer. In connection with any such assumption, no material
term of the Mortgage Note may be changed. In addition, the substitute Mortgagor
and the Mortgaged Property must be acceptable to the related Servicer in
accordance with its underwriting standards as then in effect. Together with each
such substitution, assumption or other agreement or instrument delivered to the
Securities Administrator and forwarded to the Trustee for execution by the
Trustee, the related Servicer shall deliver an Officer's Certificate signed by a
Servicing Officer stating that the requirements of this subsection have been
met. Each Servicer shall notify the Securities Administrator and the Trustee
that any such substitution or assumption agreement has been completed by
forwarding to the Securities Administrator, who shall forward a copy to the
Trustee (or at the direction of the Trustee, the Custodian) the original of such
substitution or assumption agreement, which in the case of the original shall be
added to the related Retained Mortgage File and shall, for all purposes, be
considered a part of such Retained Mortgage File to the same extent as all other
documents and instruments constituting a part thereof. Any fee collected by a
Servicer for entering into an assumption or substitution of liability agreement
may be retained by such Servicer as additional Servicing Compensation.
Notwithstanding the foregoing, to the extent permissible under applicable law
and at the request of either Servicer, the Trustee shall execute and deliver to
such Servicer any powers of attorney and other documents prepared by such
Servicer that are reasonably necessary or appropriate to enable such Servicer to
execute any assumption agreement or modification agreement required to be
executed by the Trustee under this Section 3.13.
Section 3.14 Realization Upon Defaulted Mortgage Loans; REO
Property.
(a) Subject to Section 3.21, each Servicer shall use reasonable
efforts to foreclose upon or otherwise comparably convert the ownership of
Mortgaged Properties securing such of the Mortgage Loans serviced by such
Servicer as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments. In connection
with such foreclosure or other conversion, each Servicer shall follow Customary
Servicing Procedures and shall meet the requirements of the insurer under any
Required Insurance Policy; provided, however, that either Servicer may enter
into a special servicing agreement with an unaffiliated Holder of 100%
Percentage Interest of a Class of Class B Certificates or a holder of a class of
securities representing interests in the Class B Certificates alone or together
with other subordinated mortgage pass-through certificates. Such agreement shall
be substantially in the form attached hereto as Exhibit K or subject to each
Rating Agency's acknowledgment that the ratings of the Certificates in effect
immediately prior to the entering into such agreement would not be qualified,
downgraded or withdrawn and the Certificates would not be placed on credit
review status (except for possible upgrading) as a result of such agreement. Any
such agreement may contain provisions whereby such holder may instruct the
applicable Servicer to commence or delay foreclosure proceedings with respect to
delinquent Mortgage Loans serviced by such Servicer and will contain provisions
for the deposit of cash by the holder that would be available for distribution
to Certificateholders if Liquidation Proceeds are less than they otherwise may
have been had the related Servicer acted in accordance with its normal
procedures. Notwithstanding the foregoing, a Servicer shall not be required to
expend its own funds in connection with any foreclosure or towards the
restoration of any Mortgaged Property unless it shall determine (i) that such
restoration and/or foreclosure will increase the proceeds of liquidation of the
Mortgage Loan after reimbursement to itself of such expenses and (ii) that such
expenses will be recoverable to it through proceeds of the liquidation of the
Mortgage Loan (respecting which it shall have priority for purposes of
withdrawals from the related Servicer Custodial Account). Any such expenditures
shall constitute Servicing Advances for purposes of this Agreement.
The decision of either Servicer to foreclose on a defaulted Mortgage
Loan shall be subject to a determination by such Servicer that the proceeds of
such foreclosure would exceed the costs and expenses of bringing such a
proceeding.
With respect to any REO Property, the deed or certificate of sale
shall be taken in the name of the Trust for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. The
name of the Trust shall be placed on the title to such REO Property. The related
Servicer shall ensure that the title to such REO Property references this
Agreement. Pursuant to its efforts to sell such REO Property, the related
Servicer shall either itself or through an agent selected by such Servicer
manage, conserve, protect and operate such REO Property in the same manner that
it manages, conserves, protects and operates other foreclosed property for its
own account and in the same manner that similar property in the same locality as
the REO Property is managed. Incident to its conservation and protection of the
interests of the Certificateholders, such Servicer may rent the same, or any
part thereof, as such Servicer deems to be in the best interest of the
Certificateholders for the period prior to the sale of such REO Property. Each
Servicer shall prepare for and deliver to the Securities Administrator a
statement with respect to each REO Property serviced by such Servicer that has
been rented, if any, showing the aggregate rental income received and all
expenses incurred in connection with the management and maintenance of such REO
Property at such times as is necessary to enable the Securities Administrator to
comply with the reporting requirements of the REMIC Provisions; provided,
however, that a Servicer shall have no duty to rent any REO Property on behalf
of the Trust. The net monthly rental income, if any, from such REO Property
shall be deposited in the related Servicer Custodial Account no later than the
close of business on each Determination Date. Each Servicer shall perform, with
respect to the Mortgage Loans serviced by such Servicer, the tax reporting and
withholding required by Sections 1445 and 6050J of the Code with respect to
foreclosures and abandonments, the tax reporting required by Section 6050H of
the Code with respect to the receipt of mortgage interest from individuals and,
if required by Section 6050P of the Code with respect to the cancellation of
indebtedness by certain financial entities, by preparing such tax and
information returns as may be required, in the form required. Each Servicer
shall deliver copies of such reports to the Securities Administrator.
If the Trust acquires any Mortgaged Property as described above or
otherwise in connection with a default or a default which is reasonably
foreseeable on a Mortgage Loan, the related Servicer shall dispose of such
Mortgaged Property prior to the end of the third calendar year following the
year of its acquisition by the Trust (such period, the "REO Disposition Period")
unless (A) the Securities Administrator, on behalf of the Trustee, shall have
been supplied by such Servicer with an Opinion of Counsel to the effect that the
holding by the Trust of such Mortgaged Property subsequent to the REO
Disposition Period will not result in the imposition of taxes on "prohibited
transactions" (as defined in Section 860F of the Code) on either the Upper-Tier
or Lower-Tier REMIC or cause the Trust Estate to fail to qualify as two separate
REMICs at any time that any Certificates are outstanding, or (B) the Securities
Administrator, on behalf of the Trustee (at such Servicer's expense), or such
Servicer shall have applied for, prior to the expiration of the REO Disposition
Period, an extension of the REO Disposition Period in the manner contemplated by
Section 856(e)(3) of the Code. If such an Opinion of Counsel is provided or such
an exemption is obtained, the Trust may continue to hold such Mortgaged Property
(subject to any conditions contained in such Opinion of Counsel) for the
applicable period. Notwithstanding any other provision of this Agreement, no
Mortgaged Property acquired by the Trust shall be rented (or allowed to continue
to be rented) or otherwise used for the production of income by or on behalf of
the Trust in such a manner or pursuant to any terms that would (i) cause such
Mortgaged Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code or (ii) subject either the Upper-Tier
or Lower-Tier REMIC to the imposition of any federal, state or local income
taxes on the income earned from such Mortgaged Property under Section 860G(c) of
the Code or otherwise, unless the related Servicer has agreed to indemnify and
hold harmless the Trust with respect to the imposition of any such taxes. Each
Servicer shall identify to the Securities Administrator any Mortgaged Property
relating to a Mortgage Loan serviced by such Servicer held by the Trust for 30
months for which no plans to dispose of such Mortgaged Property by such Servicer
have been made. After delivery of such identification, the related Servicer
shall proceed to dispose of any such Mortgaged Property by holding a
commercially reasonable auction for such property.
The income earned from the management of any REO Properties, net of
reimbursement to the related Servicer for expenses incurred (including any
property or other taxes) in connection with such management and net of
unreimbursed Servicing Fees, Periodic Advances and Servicing Advances, shall be
applied to the payment of principal of and interest on the related defaulted
Mortgage Loans (solely for the purposes of allocating principal and interest,
interest shall be treated as accruing as though such Mortgage Loans were still
current) and all such income shall be deemed, for all purposes in this
Agreement, to be payments on account of principal and interest on the related
Mortgage Notes and shall be deposited into the related Servicer Custodial
Account. To the extent the net income received during any calendar month is in
excess of the amount attributable to amortizing principal and accrued interest
at the related Mortgage Interest Rate on the related Mortgage Loan for such
calendar month, such excess shall be considered to be a partial prepayment of
principal of the related Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well as any
income from an REO Property, will be applied in the following order of priority:
first, to reimburse the related Servicer for any related unreimbursed Servicing
Advances and Servicing Fees; second, to reimburse the related Servicer for any
unreimbursed Periodic Advances and to reimburse the related Servicer Custodial
Account for any Nonrecoverable Advances (or portions thereof) that were
previously withdrawn by the related Servicer pursuant to Section 3.11(a)(iii)
that related to such Mortgage Loan; third, to accrued and unpaid interest (to
the extent no Periodic Advance has been made for such amount or any such
Periodic Advance has been reimbursed) on the Mortgage Loan or related REO
Property, at the Mortgage Interest Rate to the Due Date occurring in the month
in which such amounts are required to be distributed; and fourth, as a recovery
of principal of the Mortgage Loan. Excess Proceeds, if any, from the liquidation
of a Liquidated Mortgage Loan will be retained by the related Servicer as
additional Servicing Compensation pursuant to Section 3.17.
(b) Each Servicer shall promptly notify the Depositor of any
Mortgage Loan serviced by such Servicer which comes into default. The Depositor
shall be entitled, at its option, to repurchase any such defaulted Mortgage Loan
from the Trust Estate if (a) in the Depositor's judgment, the default is not
likely to be cured by the Mortgagor and (b) such Mortgage Loan is 180 days or
more delinquent. The purchase price for any such Mortgage Loan shall be 100% of
the unpaid principal balance of such Mortgage Loan plus accrued interest thereon
at the Mortgage Interest Rate (less the Servicing Fee Rate for such Mortgage
Loan) through the last day of the month in which such repurchase occurs. Upon
the receipt of such purchase price, the applicable Servicer shall provide to the
Trustee or the Custodian on the Trustee's behalf the notification required by
Section 3.15 and the Trustee or the Custodian shall promptly release to the
Depositor the Owner Mortgage File (and, if applicable, the Retained Mortgage
File) relating to the Mortgage Loan being repurchased.
Section 3.15 Trustee to Cooperate; Release of Owner Mortgage Files
and Retained Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by a
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the related Servicer will immediately notify the
Trustee (or, at the direction of the Trustee, the Custodian) by delivering, or
causing to be delivered, two copies (one of which will be returned to such
Servicer with the Owner Mortgage File (or Retained Mortgage File, if
applicable)) of a Request for Release (which may be delivered in an electronic
format acceptable to the Trustee and the related Servicer). Upon receipt of such
request, the Trustee or the Custodian, as applicable, shall within seven
Business Days release the related Owner Mortgage File (or Retained Mortgage
File, if applicable) to the related Servicer. The Trustee shall at the related
Servicer's direction execute and deliver to such Servicer the request for
reconveyance, deed of reconveyance or release or satisfaction of mortgage or
such instrument releasing the lien of the Mortgage, in each case provided by
such 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 related Servicer shall take all necessary action to reflect
the release of the Mortgage on the records of MERS. Expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the related Mortgagor. From time to time and as shall be
appropriate for the servicing or foreclosure of any Mortgage Loan, including for
such purpose collection under any policy of flood insurance, any fidelity bond
or errors or omissions policy, or for the purposes of effecting a partial
release of any Mortgaged Property from the lien of the Mortgage or the making of
any corrections to the Mortgage Note or the Mortgage or any of the other
documents included in the Owner Mortgage File (or Retained Mortgage File, if
applicable), the Trustee or the Custodian, as applicable, shall, upon delivery
to the Trustee (or, at the direction of the Trustee, the Custodian) of a Request
for Release signed by a Servicing Officer, release the Owner Mortgage File (or
Retained Mortgage File, if applicable) within seven Business Days to the related
Servicer. Subject to the further limitations set forth below, the related
Servicer shall cause the Owner Mortgage File or Retained Mortgage File so
released to be returned to the Trustee or the Custodian, as applicable, when the
need therefor by such Servicer no longer exists, unless the Mortgage Loan is
liquidated and the proceeds thereof are deposited in the related Servicer
Custodial Account, in which case the related Servicer shall deliver to the
Trustee or the Custodian, as applicable, a Request for Release, signed by a
Servicing Officer.
The Trustee shall execute and deliver to either Servicer any powers
of attorney and other documents prepared by such Servicer that are reasonably
necessary or appropriate in the judgment of the Trustee to enable such Servicer
to carry out its servicing and administrative duties under this Agreement, upon
the request of the such Servicer. In addition, upon prepayment in full of any
Mortgage Loan or the receipt of notice that funds for such purpose have been
placed in escrow, the related Servicer is authorized to give, as
attorney-in-fact for the Trustee and the mortgagee under the Mortgage, an
instrument of satisfaction (or Assignment of Mortgage without recourse)
regarding the Mortgaged Property relating to such Mortgage Loan, which
instrument of satisfaction or Assignment of Mortgage, as the case may be, shall
be delivered to the Person entitled thereto against receipt of the prepayment in
full. If the Mortgage is registered in the name of MERS or its designee, the
applicable Servicer shall take all necessary action to reflect the release on
the records of MERS. In lieu of executing such satisfaction or Assignment of
Mortgage, or if another document is required to be executed by the Trustee, the
related Servicer may deliver or cause to be delivered to the Trustee, for
signature, as appropriate, any court pleadings, requests for trustee's sale or
other documents necessary to effectuate such foreclosure or any legal action
brought to obtain judgment against the Mortgagor on the Mortgage Note or the
Mortgage or to obtain a deficiency judgment or to enforce any other remedies or
rights provided by the Mortgage Note or the Mortgage or otherwise available at
law or in equity.
Section 3.16 Documents, Records and Funds in Possession of the
Servicers to be Held for the Trustee.
Each Servicer shall transmit to the Trustee or, at the direction of
the Trustee, the Custodian or place in the Retained Mortgage File, as required
by this Agreement all documents and instruments in respect of a Mortgage Loan
serviced by such Servicer coming into the possession of such Servicer from time
to time and shall account fully to the Trustee for any funds received by such
Servicer or which otherwise are collected by such Servicer as Liquidation
Proceeds or Insurance Proceeds in respect of any Mortgage Loan serviced by such
Servicer. The documents constituting the Servicing File shall be held by the
related Servicer as custodian and bailee for the Trustee. All Owner Mortgage
Files and Retained Mortgage Files and funds collected or held by, or under the
control of, either Servicer in respect of any Mortgage Loans, whether from the
collection of principal and interest payments or from Liquidation Proceeds,
including but not limited to, any funds on deposit in the related Servicer
Custodial Account, shall be held by such 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 Servicer also
agrees that it shall not knowingly create, incur or subject any Owner Mortgage
File or Retained Mortgage File or any funds that are deposited in the related
Servicer Custodial Account, Certificate Account or any Escrow Account, or any
funds that otherwise are or may become due or payable to the Trustee for the
benefit of the Certificateholders, to any claim, lien, security interest,
judgment, levy, writ of attachment or other encumbrance created by such
Servicer, or assert by legal action or otherwise any claim or right of setoff
against any Owner Mortgage File or Retained Mortgage File or any funds collected
on, or in connection with, a Mortgage Loan, except, however, that each Servicer
shall be entitled to set off against and deduct from any such funds any amounts
that are properly due and payable to such Servicer under this Agreement.
Section 3.17 Servicing Compensation.
Each Servicer shall be entitled out of each payment of interest on a
Mortgage Loan (or portion thereof) serviced by such Servicer and included in the
Trust Estate to retain or withdraw from the related Servicer Custodial Account
an amount equal to the Servicing Fee for such Distribution Date; provided,
however, that the aggregate Servicing Fee for a Servicer relating to the
Mortgage Loans serviced by such Servicer shall be reduced (but no below zero) by
an amount equal to the Compensating Interest.
Any additional Servicing Compensation shall be retained by the
related Servicer to the extent not required to be deposited in the related
Servicer Custodial Account pursuant to Section 3.08(b). Each Servicer shall be
required to pay all expenses incurred by it in connection with its servicing
activities hereunder and shall not be entitled to reimbursement therefor except
as specifically provided in this Agreement.
Notwithstanding the foregoing, with respect to the payment of the
Servicing Fee on any Distribution Date, the aggregate Servicing Fee for each
Servicer for such Distribution Date shall be reduced (but not below zero) by an
amount equal to the lesser of (a) the Prepayment Interest Shortfall for such
Distribution Date relating to the Mortgage Loans serviced by such Servicer and
(b) one-twelfth of 0.25% of the aggregate Stated Principal Balance of the
Mortgage Loans serviced by such Servicer for such Distribution Date (any such
reduction, "Compensating Interest").
Section 3.18 Annual Statement as to Compliance.
Each 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 stating, as to the signer thereof, that (a)
a review of the activities of such Servicer during the preceding calendar year
and of the performance of such 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 Servicer has fulfilled
all its obligations under this Agreement throughout such year, or, if there has
been a default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof.
Section 3.19 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
No later than March 15 following the end of each calendar year
commencing with March 2005, each Servicer shall, at its own expense, cause a
firm of independent public accountants (who may also render other services to
such Servicer or any affiliate thereof) which is a member of the American
Institute of Certified Public Accountants to furnish a statement to the
Securities Administrator and the Trustee to the effect that such firm has with
respect to such Servicer's overall servicing operations, examined such
operations in accordance with the requirements of the Uniform Single Attestation
Program for Mortgage Bankers, stating such firm's conclusions relating thereto.
Section 3.20 Advances.
Each Servicer shall determine on or before each Servicer Advance
Date whether it is required to make a Periodic Advance pursuant to the
definition thereof. If either Servicer determines it is required to make a
Periodic Advance, it shall, on or before the Servicer Advance Date, either (a)
deposit into the related Servicer Custodial Account an amount equal to the
Advance and/or (b) make an appropriate entry in its records relating to the
related Servicer Custodial Account that any portion of the Amount Held for
Future Distribution with respect to a Loan Group in such Servicer Custodial
Account has been used by such Servicer in discharge of its obligation to make
any such Periodic Advance on a Mortgage Loan in such Loan Group. Any funds so
applied shall be replaced by such Servicer by deposit in the related Servicer
Custodial Account no later than the close of business on the Business Day
preceding the next Servicer Advance Date. If a Servicer fails to make any
required Advance, the Securities Administrator shall make such Advance not later
than the Business Day preceding each related Distribution Date for the period
prior to the appointment of a successor Servicer; provided that if the Servicer
that fails to make such Advance is Xxxxx Fargo Bank, the Trustee shall have such
obligation to make such Advance. Each Servicer shall be entitled to be
reimbursed from the related Servicer Custodial Account for all Advances of its
own funds made pursuant to this Section 3.20 as provided in Section 3.11(a). The
obligation to make Periodic Advances with respect to any Mortgage Loan shall
continue until the ultimate disposition of the REO Property or Mortgaged
Property relating to such Mortgage Loan. Each Servicer shall inform the
Securities Administrator of the amount of the Periodic Advance to be made by
such Servicer with respect to each Loan Group on each Servicer Advance Date no
later than the related Remittance Date.
Each Servicer shall deliver to the Securities Administrator on the
related Servicer Advance Date an Officer's Certificate of a Servicing Officer
indicating the amount of any proposed Periodic Advance determined by such
Servicer to be a Nonrecoverable Advance. Notwithstanding anything to the
contrary, the related Servicer shall not be required to make any Periodic
Advance or Servicing Advance that would be a Nonrecoverable Advance.
Section 3.21 Modifications, Waivers, Amendments and Consents.
(a) Subject to this Section 3.21, each Servicer may agree to any
modification, waiver, forbearance, or amendment of any term of any Mortgage Loan
serviced by such Servicer without the consent of the Securities Administrator,
the Trustee or any Certificateholder. All modifications, waivers, forbearances
or amendments of any Mortgage Loan shall be in writing and shall be consistent
with Customary Servicing Procedures.
(b) A Servicer shall not agree to enter into, and shall not enter
into, any modification, waiver (other than a waiver referred to in Section 3.13,
which waiver, if any, shall be governed by Section 3.13), forbearance or
amendment of any term of any Mortgage Loan if such modification, waiver,
forbearance, or amendment would:
(i) affect the amount or timing of any related payment of principal,
interest or other amount payable thereunder;
(ii) in such Servicer's judgment, materially impair the security for
such Mortgage Loan or reduce the likelihood of timely payment of amounts
due thereon; or
(iii) otherwise constitute a "significant modification" within the
meaning of Treasury Regulations Section 1.860G-2(b);
unless, in the case of clauses (ii) through (iv) above, (A) such Mortgage Loan
is 90 days or more past due or (B) such Servicer delivers to the Trustee and the
Securities Administrator an Opinion of Counsel to the effect that such
modification, waiver, forbearance or amendment would not affect the REMIC status
of the Upper-Tier REMIC or Lower-Tier REMIC and, in either case, such
modification, waiver, forbearance or amendment is reasonably likely, in the
related Servicer's judgment, to produce a greater recovery with respect to such
Mortgage Loan than would liquidation. Subject to Customary Servicing Procedures,
either Servicer may permit a forbearance for a Mortgage Loan serviced by such
Servicer which in such Servicer's judgment is subject to imminent default.
(c) Any payment of interest, which is deferred pursuant to any
modification, waiver, forbearance or amendment permitted hereunder, shall not,
for purposes hereof, including, without limitation, calculating monthly
distributions to Certificateholders, be added to the unpaid principal balance of
the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan
or such modification, waiver or amendment so permit.
(d) Either Servicer may, as a condition to granting any request by a
Mortgagor for consent, modification, waiver, forbearance or amendment, the
granting of which is within such Servicer's discretion pursuant to the Mortgage
Loan and is permitted by the terms of this Agreement, require that such
Mortgagor pay to such Servicer, as additional Servicing Compensation, a
reasonable or customary fee for the additional services performed in connection
with such request, together with any related costs and expenses incurred by such
Servicer, which amount shall be retained by such Servicer as additional
Servicing Compensation.
(e) Each Servicer shall notify the Securities Administrator and the
Trustee, in writing, of any modification, waiver, forbearance or amendment of
any term of any Mortgage Loan serviced by such Servicer and the date thereof,
and shall deliver to the Trustee (or, at the direction of the Trustee, the
Custodian) for deposit in the related Owner Mortgage File, an original
counterpart of the agreement relating to such modification, waiver, forbearance
or amendment, promptly (and in any event within ten Business Days) following the
execution thereof; provided, however, that if any such modification, waiver,
forbearance or amendment is required by applicable law to be recorded, the
related Servicer (i) shall deliver to the Trustee (or, at the direction of the
Trustee, the Custodian) a copy thereof and (ii) shall deliver to the Trustee
(or, at the direction of the Trustee, the Custodian) such document, with
evidence of notification upon receipt thereof from the public recording office.
Section 3.22 Reports to the Securities and Exchange Commission.
(a) The Securities Administrator and each Servicer shall reasonably
cooperate with the Depositor in connection with the Trust's satisfying its
reporting requirements under the Exchange Act. Without limiting the generality
of the foregoing, the Securities Administrator shall prepare on behalf of the
Trust any monthly Current Reports on Form 8-K (each, a "Monthly Form 8-K") or
other comparable form and Annual Reports on Form 10-K (each, a "Form 10-K")
customary for similar securities as required by the Exchange Act and the rules
and regulations of the Securities and Exchange Commission thereunder, and the
Securities Administrator shall sign and file (via the Securities and Exchange
Commission's Electronic Data Gathering and Retrieval System) such Forms (other
than any Annual Report on Form 10-K, which shall be signed by the Depositor) on
behalf of the Trust.
(b) Each Monthly Form 8-K shall be filed by the Securities
Administrator within 15 days after each Distribution Date, including a copy of
the monthly statement to Certificateholders delivered pursuant to Section
5.04(b) (each, a "Distribution Date Statement") for such Distribution Date as an
exhibit thereto. 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 the
Servicer's annual statement of compliance described under Section 3.18 and the
accountant's report described under Section 3.19, in each case, to the extent
they have been timely delivered to the Securities Administrator. If they are not
so timely delivered, the Securities Administrator shall file an amended Form
10-K including such documents as exhibits reasonably promptly after they are
delivered to the Securities Administrator. The Securities Administrator shall
have no liability with respect to any failure to properly prepare or file such
periodic reports resulting from or relating to the Securities Administrator's
inability or failure to obtain any information not resulting from its own
negligence, willful misconduct or bad faith. The Form 10-K shall also include a
certification in the form attached hereto as Exhibit O (the "Certification"),
which shall be signed by a senior officer of the Depositor in charge of
securitization. The Depositor shall deliver the Certification to the Securities
Administrator three (3) Business Days prior to the latest date on which the Form
10-K may be timely filed. The Securities Administrator, the Trustee, the
Depositor and each Servicer shall reasonably cooperate to enable the Securities
and Exchange Commission requirements with respect to the Trust to be met in the
event that the Securities and Exchange Commission issues additional interpretive
guidelines or promulgates rules or regulations, or in the event of any other
change of law that would require reporting arrangements or the allocation of
responsibilities with respect thereto, as described in this Section 3.22, to be
conducted or allocated in a different manner.
(c) Prior to the latest date on which the Form 10-K may be timely
filed each year, the Securities Administrator shall sign and deliver to the
Depositor a certification (in the form attached hereto as Exhibit P, with such
modification thereto as shall be reasonably required in connection with any
changes made by the SEC to any certification requirement under Section 302 of
the Xxxxxxxx-Xxxxx Act) for the benefit of the Depositor and its officers,
directors and affiliates (provided, however, that the Securities Administrator
shall not undertake an analysis of the accountant's report attached as an
exhibit to the Form 10-K). In addition, the Securities Administrator shall
indemnify and hold harmless the Depositor and its officers, directors and
affiliates from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other costs
and expenses arising out of or based upon any inaccuracy in the certification
provided by the Securities Administrator pursuant to this Section 3.22(c), any
breach of the Securities Administrator's obligations under this Section 3.22(c)
or the Securities Administrator's negligence, bad faith or willful misconduct in
connection therewith. If the indemnification provided for herein is unavailable
or insufficient to hold harmless the Depositor and its officers, directors and
affiliates, then the Securities Administrator agrees that it shall contribute to
the amount paid or payable by the Depositor, its officers, directors or
affiliates as a result of the losses, claims, damages or liabilities of the
Depositor, its officers, directors or affiliates in such proportion as is
appropriate to reflect the relative fault of the Depositor and its officers,
directors and affiliates on the one hand and the Securities Administrator on the
other in connection with a breach of the Securities Administrator's obligations
under this Section 3.22(c) or the Securities Administrator's negligence, bad
faith or willful misconduct in connection therewith. Each Servicer hereby
acknowledges and agrees that the Depositor and the Securities Administrator are
relying on such Servicer's performance of its obligations under Sections 3.18
and 3.19 in order to perform their respective obligations under this Section
3.22.
(d) Prior to the latest date on which the Form 10-K may be timely
filed each year, each Servicer shall sign and deliver to the Depositor a
certification (in the form attached hereto as Exhibit Q, with such modification
thereto as shall be reasonably required in connection with any changes made by
the SEC to any certification requirement under Section 302 of the Xxxxxxxx-Xxxxx
Act) for the benefit of the Depositor and its officers, directors and
affiliates. In addition, each Servicer shall indemnify and hold harmless the
Depositor, and its officers, directors and affiliates from and against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses arising out of or
based upon any inaccuracy in the certification provided by such Servicer
pursuant to this Section 3.22(d), any breach of such Servicer's obligations
under this Section 3.22(d) or such Servicer's negligence, bad faith or willful
misconduct in connection therewith. If the indemnification provided for herein
is unavailable or insufficient to hold harmless the Depositor and its officers,
directors and affiliates, then such Servicer agrees that it shall contribute to
the amount paid or payable by the Depositor, its officers, directors or
affiliates as a result of the losses, claims, damages or liabilities of the
Depositor, its officers, directors or affiliates in such proportion as is
appropriate to reflect the relative fault of the Depositor and its officers,
directors and affiliates on the one hand and such Servicer on the other in
connection with a breach of such Servicer's obligations under this Section
3.22(d) or such Servicer's negligence, bad faith or willful misconduct in
connection therewith.
(e) Upon any filing with the Securities and Exchange Commission, the
Securities Administrator shall promptly deliver to the Depositor a copy of any
such executed report, statement or information.
(f) The obligations set forth in paragraphs (a) through (e) of this
Section shall only apply with respect to periods for which the Securities
Administrator is obligated to file reports on Form 8-K or 10-K pursuant to
paragraph (b) of this Section. 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, and
thereafter there shall be no further obligations under paragraphs (a) through
(e) of this Section commencing with the fiscal year in which the Form 15 is
filed (other than the obligations to be performed in such fiscal year that
relate back to the prior fiscal year).
Section 3.23 Buy-Down Account; Application of Buy-Down Funds. In
addition to the Servicer Custodial Accounts, if any of the Mortgage Loans are
Buy-Down Mortgage Loans, the Servicer responsible for servicing such Buy-Down
Mortgage Loans shall establish and maintain a Buy-Down Account, which is not
part of the Trust Estate, and shall deposit therein all Buy-Down Funds not later
than the Business Day following the day of receipt and posting by such Servicer.
A Servicer shall keep and maintain a separate account for each Buy-Down Mortgage
Loan for the purpose of accounting for deposits to and withdrawals from the
Buy-Down Account. A Servicer shall invest the funds in the Buy-Down Account in
investments which are Permitted Investments. All income and gain realized from
any such investment, to the extent not required by the applicable Buy-Down
Agreements to be applied to pay interest on the related Buy-Down Mortgage Loans,
shall be for the benefit of the related Servicer. The amount of any losses
incurred in respect of such investments shall be deposited in the Buy-Down
Account by the related Servicer out of its own funds immediately as realized.
With respect to each Buy-Down Mortgage Loan, on the Business Day
next following receipt of the Mortgagor's required monthly payment under the
related Buy-Down Agreement, the related Servicer shall withdraw from the
Buy-Down Account and deposit in immediately available funds in the related
Servicer Custodial Account an amount which, when added to such Mortgagor's
payment, will equal the full monthly payment due under the related Mortgage
Note.
Upon termination of a Buy-Down Agreement, no further Buy-Down Funds
relating thereto shall be deposited into the related Servicer Custodial Account,
and the related Servicer may withdraw the related Buy-Down Funds which remain in
the Buy-Down Account and distribute such funds as provided by such Buy-Down
Agreement.
ARTICLE IV
SERVICER'S CERTIFICATE
Section 4.01 Servicer's Certificate.
Each month, not later than the Business Day following each
Determination Date, each Servicer shall deliver to the Securities Administrator,
a Servicer's Certificate (in substance and format mutually acceptable to such
Servicer and the Securities Administrator) certified by a Servicing Officer
setting forth the information necessary in order for the Securities
Administrator to perform its obligations under this Agreement. The Securities
Administrator may conclusively rely upon the information contained in a
Servicer's Certificate for all purposes hereunder and shall have no duty to
verify or re-compute any of the information contained therein.
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01 Distributions. On each Distribution Date, based solely
on the information in the Servicer's Certificate, the Securities Administrator
shall distribute out of the Certificate Account (to the extent funds are
available therein) to each Certificateholder of record on the related Record
Date (other than as provided in Section 10.01 respecting the final distribution)
(a) by check mailed to such Certificateholder entitled to receive a distribution
on such Distribution Date at the address appearing in the Certificate Register,
or (b) upon written request by the Holder of a 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
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, 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 pursuant to Sections 3.11(b)(i) and 3.11(b)(ii) and the
Trustee, pursuant to Section 3.11(b)(i) shall pay such funds to itself and the
Trustee, as applicable, and (2) based solely on the information contained in the
Servicer's Certificate, the Pool Distribution Amount for each Loan Group, in an
amount as specified in written notice received by the Securities Administrator
from the Servicers no later than the Business Day following the related
Determination Date, and shall apply such funds first, to distributions in
respect of the Uncertificated Lower-Tier Interests as specified in this Section
5.02(a) and to the Class 1-A-LR Certificate, and then to distributions on the
Certificates (other than the Class 1-A-LR Certificate). Distributions shall be
made on the Certificates in the following order of priority and to the extent of
such funds, paying Group 1 solely from the Pool Distribution Amount for Loan
Group 1, paying Group 2 solely from the Pool Distribution Amount for Loan Group
2, paying Group 3 solely from the Pool Distribution Amount for Loan Group 3,
paying Group 4 solely from the Pool Distribution Amount for Loan Group 4, paying
Group 5 solely from the Pool Distribution Amount for Loan Group 5, and paying
the Class B Certificates from the combined Pool Distribution Amounts, in the
following order of priority and to the extent of such funds:
(i) to each Class of Senior Certificates 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 the 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 applicable Pool Distribution Amount.
On each Distribution Date, interest shall be distributed in respect
of each Uncertificated Lower- Tier Interest at the pass-through rate thereon, as
described in the final paragraph of this Section 5.02(a). On each Distribution
Date, all distributions of principal 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 the principal balances thereof (computed to
eight decimal places) 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 amount is greater than on the preceding
Distribution Date, the least amount of principal shall be distributed to the
Class 1-LS Interest, Class 2-LS Interest, 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 of principal made to the Uncertificated Lower-Tier
Interests pursuant to this paragraph shall be made (a) from the Group 1 Mortgage
Loans to the Uncertificated Lower-Tier Interests beginning with the numeral "1",
(b) from the Group 2 Mortgage Loans to the Uncertificated Lower-Tier Interests
beginning with the numeral "2," (c) from the Group 3 Mortgage Loans to the
Uncertificated Lower-Tier Interests beginning with the numeral "3," (d) from the
Group 4 Mortgage Loans to the Uncertificated Lower-Tier Interests beginning with
the numeral "4" and (e) from the Group 5 Mortgage Loans to the Uncertificated
Lower-Tier 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, Class 3-LS Interest, Class 4-LS Interest and Class 5-LS Interest, so
as to keep their principal balances (computed to eight decimal places) 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 amount
is greater than on the preceding Distribution Date, the least amount of Realized
Losses shall be allocated to the Class 1-LS Interest, Class 2-LS Interest, 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, Class 2-L Interest, Class
3-L Interest, Class 4-L Interest and Class 5-L Interest. Any Realized Losses
allocated to the Uncertificated Lower-Tier Interests pursuant to this paragraph
shall be (a) from Realized Losses allocated to Loan Group 1 in the case of
Uncertificated Lower-Tier Interests beginning with the numeral "1," (b) from
Realized Losses allocated to Loan Group 2 in the case of Uncertificated
Lower-Tier Interests beginning with the numeral "2," (c) from Realized Losses
allocated to Loan Group 3 in the case of Uncertificated Lower-Tier Interests
beginning with the numeral "3," (d) from Realized Losses allocated to Loan Group
4 in the case of Uncertificated Lower-Tier Interests beginning with the numeral
"4" and (e) from Realized Losses allocated to Loan Group 5 in the case of
Uncertificated Lower-Tier Interests beginning with the numeral "5."
Recoveries and Reimbursement Amounts shall be applied to the
Uncertificated Lower-Tier Interests in a manner analogous to the application of
Realized Losses to the Uncertificated Lower-Tier 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 the Group 1 Mortgage Loans minus the Class Certificate Balance of the
Class 1-A-LR Certificate. As of any date, the aggregate principal balance of the
Class 2-L Interest and the Class 2-LS Interest shall equal the aggregate Stated
Principal Balance of the Group 2 Mortgage Loans. As of any date, the aggregate
principal balance of the Class 3-L Interest and the Class 3-LS Interest shall
equal the aggregate Stated Principal Balance of the Group 3 Mortgage Loans. 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 the
Group 4 Mortgage Loans. 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 the Group 5 Mortgage Loans.
The pass-through rate with respect to the Class 1-L Interest and the
Class 1-LS Interest shall be the Group 1 Lower-Tier Rate. The pass-through rate
with respect to the Class 2-L Interest and Class 2-LS Interest shall be the
Group 2 Lower-Tier Rate. The pass-through rate with respect to the Class 3-L
Interest and the Class 3-LS Interest shall be the Group 3 Lower-Tier Rate. The
pass-through rate with respect to the Class 4-L Interest and the Class 4-LS
Interest shall be the Group 4 Lower-Tier Rate. The pass-through rate with
respect to the Class 5-L Interest and the Class 5-LS Interest shall be the Group
5 Lower-Tier Rate. Any Non-Supported Interest Shortfalls and Relief Act
Reductions will be allocated to each Uncertificated Lower-Tier Interest in the
same relative proportions as interest is allocated to such Uncertificated
Lower-Tier Interest. Amounts distributed to the Uncertificated Lower-Tier
Interests in respect of principal and interest with respect to any Distribution
Date are referred to herein collectively as the "Lower-Tier Distribution
Amount."
(b) (i) With respect to the Class A Certificates of Group 1:
On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 1 Senior Certificates
pursuant to Section 5.02(a)(ii) for such Distribution Date, will be distributed
as principal, 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, concurrently, to the Class 1-A-1, Class 1-A-2, Class 1-A-3
and Class 1-A-4 Certificates, pro rata, until their Class Certificate Balances
have been reduced to zero.
(ii) With respect to the Class A Certificates of Group 2:
On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 2 Senior Certificates
pursuant to Section 5.02(a)(ii) for such Distribution Date, will be distributed
as principal to the Class 2-A-1 Certificates until its Class Certificate Balance
has been reduced to zero.
(iii) With respect to the Class A Certificates of Group 3:
On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 3 Senior Certificates
pursuant to Section 5.02(a)(ii) for such Distribution Date, will be distributed
as principal to the Class 3-A-1 Certificates until its Class Certificate Balance
has been reduced to zero.
(iv) With respect to the Class A Certificates of Group 4:
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
as principal to the Class 4-A-1 Certificates until its Class Certificate Balance
has been reduced to zero.
(v) With respect to the Class A Certificates of Group 5:
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
as principal to the Class 5-A-1 Certificates until its Class Certificate Balance
has been reduced to zero.
(vi) 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 Senior Certificates
of a Group have been reduced to zero, amounts otherwise distributable as
Unscheduled Principal Payments on the Subordinate Certificates will be
paid as principal to the remaining classes of Senior Certificates in
accordance with the priorities set forth for the applicable Group in (i)
through (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, 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 greater than or equal to 50%. If the Senior
Certificates of two or more Groups remain outstanding, the distributions
described above will be made to the Senior Certificates of such Groups,
pro rata, in proportion to the aggregate Class Certificate Balance of the
Senior Certificates of each such Group. In addition, if on any
Distribution Date the aggregate Class Certificate Balance of the Senior
Certificates of a Group (after giving effect to distributions to be made
on such Distribution Date) is greater than the 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
Section 5.02(a)(iii)(L), (J), (H), (F), (D) and (B), in that order, will
be paid as principal to the Senior Certificates of the Undercollateralized
Group in accordance with the priorities set forth for the applicable Group
above under (i) through (v) above until the aggregate Class Certificate
Balance of the Senior 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
in accordance with the priorities listed in Section 5.02(a)(i) prior to
the payment of any Undercollateralized Amount from amounts otherwise
distributable as principal on the Subordinate Certificates pursuant to
Section 5.02(a)(iii)(L), (J), (H), (F), (D) and (B), in that order: such
amount will be paid to the Senior Certificates, when applicable, of such
Undercollateralized Group in accordance with the priorities set forth in
Section 5.02(a)(i) 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 Senior
Certificates of each such Group exceeds the Adjusted Pool Amount of the
related Loan Group.
On each Distribution Date on or after the Senior Credit Support
Depletion Date, notwithstanding the allocation and priority set forth above, the
portion of the Pool Distribution Amount with respect to a Loan Group available
to be distributed as principal of the 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.
(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 calendar month preceding
the month of such Distribution Date.
(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).
Section 5.03 Allocation of Losses.
(a) On or prior to each Determination Date, each Servicer shall
inform the Securities Administrator in writing with respect to each Mortgage
Loan serviced by such 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 Mortgage Loans in each Loan Group.
Based on such information, the Securities Administrator shall determine the
total amount of Realized Losses on the Mortgage Loans in each Loan Group with
respect to the related Distribution Date. Realized Losses shall be allocated to
the Certificates by a reduction in the Class Certificate Balances of the
designated Classes pursuant to Section 5.03(b) below.
(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 Senior Certificates of a 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 Senior Certificates of such Group (after giving effect to
the amount to be distributed as a distribution of principal on such Distribution
Date) equals the Adjusted Pool Amount for the related Loan Group and
Distribution Date.
Any such reduction or increase shall be allocated among the Senior
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 than outstanding with the
lowest numerical designation) until the respective Class Certificate Balance of
each such Class is reduced to zero and then to the Senior Certificates of such
Group, pro rata, in accordance with the priorities set forth in Section 5.02.
(e) After the Senior Credit Support Depletion Date, on any
Distribution Date on which the Class 1-A-2 Loss Allocation Amount is greater
than zero, the Class Certificate Balance of the Class 1-A-2 Certificates will be
reduced by the Class 1-A-2 Loss Allocation Amount and, notwithstanding Section
5.03(b), the Class Certificate Balance of the Class 1-A-1 Certificates will not
be reduced by the 1-A-2 Loss Allocation Amount.
Any increase allocated to the 1-A-1 Certificates pursuant to Section
5.03(b) will instead increase the Class Certificate Balance of the Class 1-A-2
Certificates.
After the Senior Credit Support Depletion Date, on any Distribution
Date on which the Class 1-A-4 Loss Allocation Amount is greater than zero, the
Class Certificate Balance of the Class 1-A-4 Certificates will be reduced by the
Class 1-A-4 Loss Allocation Amount and, notwithstanding Section 5.03(b), the
Class Certificate Balance of the Class 1-A-3 Certificates will not be reduced by
the Class 1-A-4 Loss Allocation Amount.
Any increase allocated to the Class 1-A-3 Certificates pursuant to
Section 5.03(b) will instead increase the Class Certificate Balance of the Class
1-A-4 Certificates.
(f) With respect to any Distribution Date, Realized Losses allocated
pursuant to this Section 5.03 will be allocated to each Uncertificated
Lower-Tier Interest as described in Section 5.02(a).
(g) 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.
Section 5.04 Statements to Certificateholders.
(a) Prior to the Distribution Date in each month, based upon the
information provided to the Securities Administrator on the Servicer's
Certificates delivered to the Securities Administrator pursuant to Section 4.01,
the Securities Administrator shall determine the following information with
respect to such Distribution Date:
(i) for each Group, the amount allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments and
Liquidation Proceeds included therein;
(ii) for each Group, the amount allocable to interest, any Class
Unpaid Interest Shortfall included in such distribution and any remaining
Class Unpaid Interest Shortfall after giving effect to such distribution;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the amount
of the shortfall and the allocation thereof as between principal and
interest;
(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on such Distribution
Date;
(v) for each Loan Group, the Pool Stated Principal Balance for the
following Distribution Date;
(vi) the Senior Percentage for each Loan Group, and the Subordinate
Percentage for the following Distribution Date, the Total Senior
Percentage and the Aggregate Subordinate Percentage for the following
Distribution Date;
(vii) the amount of the Servicing Fees paid to or retained by each
Servicer with respect to each Loan Group and such Distribution Date;
(viii) the Pass-Through Rate for each such Class of Certificates
with respect to such Distribution Date;
(ix) for each Loan Group, the amount of Periodic Advances included
in the distribution on such Distribution Date and the aggregate amount of
Periodic Advances outstanding as of the close of business on such
Distribution Date;
(x) for each Loan Group, the number and aggregate principal amounts
of Mortgage Loans (A) delinquent (exclusive of Mortgage Loans in
foreclosure or in bankruptcy) (1) 1 to 30 days (2) 31 to 60 days (3) 61 to
90 days and (4) 91 or more days, (B) in foreclosure, as of the close of
business on the last day of the calendar month preceding such Distribution
Date and (C) in bankruptcy, as of the close of business on the last day of
the calendar month preceding such Distribution Date;
(xi) for each Loan Group, with respect to any Mortgage Loan that
became an REO Property during the preceding calendar month, the loan
number and Stated Principal Balance of such Mortgage Loan as of the close
of business on the Determination Date preceding such Distribution Date and
the date of acquisition thereof;
(xii) for each Loan Group, the total number and principal balance of
any REO Properties (and market value, if available) as of the close of
business on the Determination Date preceding such Distribution Date;
(xiii) for each Loan Group, the Senior Prepayment Percentage and the
Subordinate Prepayment Percentage for the following Distribution Date;
(xiv) for each Loan Group, the aggregate amount of Realized Losses
incurred during the preceding calendar month and for each Group for such
Distribution Date; and
(xv) for each Loan Group the amount of Recovery.
(b) No later than each Distribution Date, the Securities
Administrator, based upon information supplied to it on the Servicer's
Certificates, shall make available to each Holder of a Certificate, each Rating
Agency and each Servicer 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 make available 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, the Trustee shall timely sign, and the Securities Administrator 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 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
each of the Lower-Tier REMIC and the Upper-Tier REMIC for such taxable year and
all succeeding taxable years.
(d) The Securities Administrator will maintain or cause to be
maintained such records relating to each REMIC, including but not limited to
records relating to the income, expenses, assets and liabilities of the Trust
Estate, and the initial fair market value and adjusted basis of the Trust Estate
property and assets determined at such intervals as may be required by the Code
or the Treasury Regulations, as may be necessary to prepare the foregoing
returns, schedules, statements or information.
Section 5.06 Tax Matters Person. The Tax Matters Person shall have
the same duties with respect to each REMIC as those of a "tax matters partner"
under Subchapter C of Chapter 63 of Subtitle F of the Code. The Holder of the
Class 1-A-R Certificate is hereby designated as the Tax Matters Person for the
Upper-Tier REMIC. The Holder of the Class 1-A-LR Certificate is hereby
designated as the Tax Matters Person for the Lower-Tier REMIC. By their
acceptance of the Class 1-A-R or Class 1-A-LR Certificate, as applicable, each
such Holder irrevocably appoints the 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 REMIC.
Section 5.07 Rights of the Tax Matters Person in Respect of the
Securities Administrator. The Securities Administrator shall afford the Tax
Matters Person, upon reasonable notice during normal business hours, access to
all records maintained by the Securities Administrator in respect of its duties
hereunder and access to officers of the Securities Administrator responsible for
performing such duties. Upon request, the Securities Administrator shall furnish
the Tax Matters Person with its most recent report of condition published
pursuant to law or to the requirements of its supervisory or examining authority
publicly available. The Securities Administrator shall make available to the Tax
Matters Person such books, documents or records relating to the Securities
Administrator's services hereunder as the Tax Matters Person shall reasonably
request. The Tax Matters Person shall not have any responsibility or liability
for any action or failure to act by the Securities Administrator and is not
obligated to supervise the performance of the Securities Administrator under
this Agreement or otherwise.
Section 5.08 REMIC Related Covenants. For as long as the Trust shall
exist, the Trustee, the Securities Administrator, the Depositor and each
Servicer shall act in accordance herewith to assure continuing treatment of the
Upper-Tier REMIC and Lower-Tier REMIC as REMICs and avoid the imposition of tax
on either REMIC created hereunder. In particular:
(a) Neither the Securities Administrator nor the Trustee shall
create, or permit the creation of, any "interests" in either REMIC within the
meaning of Code Section 860D(a)(2) other than the interests represented by the
Regular Certificates, the Residual Certificates and the Uncertificated
Lower-Tier Interests.
(b) Except as otherwise provided in the Code, (i) the Depositor and
the Servicers 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 either REMIC after the start-up day unless such contribution
would not subject the Trust Estate to the 100% tax on contributions to a REMIC
after the start-up day of the REMIC imposed by Code Section 860G(d).
(c) The Securities Administrator, on behalf of the Trustee, shall
not accept on behalf of either REMIC any fee or other compensation for services
and none of the Securities Administrator, the Trustee or the 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 or 3.14(b)), unless
such sale is pursuant to a "qualified liquidation" of the applicable REMIC as
defined in Code Section 860F(a)(4)(A) and in accordance with Article X.
(e) The 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 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 each Servicer and
the Depositor, the Securities Administrator may engage in the activities
otherwise prohibited by the foregoing paragraphs (b), (c) and (d); provided that
each Servicer (or the two Servicers, acting together) shall have delivered to
the Securities Administrator an Opinion of Counsel to the effect that such
transaction will not result in the imposition of a tax on either of the
Upper-Tier REMIC or Lower-Tier REMIC and will not disqualify either REMIC from
treatment as a REMIC; and, provided further, that the 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-0, X-0-X-0, X-0-X-0, X-0-X-X, X-0-X-XX, A-2-A-1,
A-3-A-1, A-4-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
or Custodian on behalf of the Trustee of the documents specified in Section
2.01. The Certificates shall be available to investors in the minimum
denominations representing minimum dollar Certificate Balances (or notional
amount or Percentage Interest) and integral multiples in excess thereof as 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 (1) 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 (2) the Securities
Administrator or the Depositor is unable to locate a qualified successor,
the Securities Administrator shall notify all Certificate Owners of
Book-Entry Certificates, 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
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 either Servicer, or (ii)
in the case of any ERISA Restricted Certificate presented for registration in
the name of an employee benefit plan or arrangement, including an individual
retirement account, subject to ERISA, the Code, or any federal, state or local
law ("Similar Law") which is similar to ERISA or the Code (collectively, a
"Plan"), or a trustee or custodian of any of the foregoing, an Opinion of
Counsel in form and substance satisfactory to the Securities Administrator and
each Servicer 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 either Servicer to any obligation in
addition to those undertaken in this Agreement, which Opinion of Counsel shall
not be an expense of the Securities Administrator, the Trustee or either
Servicer. Any transferee of an ERISA Restricted Certificate that does not comply
with either clause (i) or (ii) of the preceding sentence will be deemed to have
made one of the representations set forth in Exhibit H. For purposes of clause
(i) of the second preceding sentence, such representation shall be deemed to
have been made to the Certificate Registrar by the acceptance by a Certificate
Owner of a Book-Entry Certificate of the beneficial interest in any such Class
of ERISA-Restricted Certificates, unless the Certificate Registrar shall have
received from the transferee an alternative representation acceptable in form
and substance to the Depositor. Notwithstanding anything else to the contrary
herein, any purported transfer of an ERISA Restricted Certificate to or on
behalf of a Plan without the delivery to the Securities Administrator and each
Servicer of an Opinion of Counsel satisfactory to the Securities Administrator
and each Servicer as described above shall be void and of no effect.
Neither the Securities Administrator nor the Certificate Registrar
shall have any liability for transfers of Book-Entry Certificates made through
the book-entry facilities of the Depository or between or among any Depository
Participants or Certificate Owners, made in violation of applicable
restrictions. The Securities Administrator may rely and shall be fully protected
in relying upon information furnished by the Depository with respect to its
Depository Participants and furnished by the Depository Participants with
respect to indirect participating firms and Persons shown on the books of such
indirect participating firms as direct or indirect Certificate Owners.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Securities Administrator shall be under no liability to
any Person for any registration of transfer of any ERISA Restricted Certificate
that is in fact not permitted by this Section 6.02 or for making any payments
due on such Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
transfer was registered by the Securities Administrator in accordance with the
foregoing requirements.
(f) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Securities Administrator of any change or impending change in
its status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Residual
Certificate unless such Ownership Interest is a pro rata undivided
interest.
(iii) In connection with any proposed transfer of any Ownership
Interest in a Residual Certificate, the Securities Administrator shall
require delivery to it, in form and substance satisfactory to it, of an
affidavit in the form of Exhibit I hereto from the proposed transferee.
(iv) Notwithstanding the delivery of an affidavit by a proposed
transferee under clause (iii) above, if a Responsible Officer of the
Securities Administrator has actual knowledge that the proposed transferee
is not a Permitted Transferee, no transfer of any Ownership Interest in a
Residual Certificate to such proposed transferee shall be effected.
(v) No Ownership Interest in a Residual Certificate may be purchased
by or transferred to any Person that is not a U.S. Person, unless (A) such
Person holds such Residual Certificate in connection with the conduct of a
trade or business within the United States and furnishes the transferor
and the Securities Administrator with an effective Internal Revenue
Service Form W-8ECI (or successor thereto) or (B) the transferee delivers
to both the transferor and the Securities Administrator an Opinion of
Counsel from a nationally-recognized tax counsel to the effect that such
transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of a Residual
Certificate will not be disregarded for federal income tax purposes.
(vi) Any attempted or purported transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
6.02 shall be absolutely null and void and shall vest no rights in the
purported transferee. If any purported transferee shall, in violation of
the provisions of this Section 6.02, become a Holder of a Residual
Certificate, then the prior Holder of such Residual Certificate that is a
Permitted Transferee shall, upon discovery that the registration of
transfer of such Residual Certificate was not in fact permitted by this
Section 6.02, be restored to all rights as Holder thereof retroactive to
the date of registration of transfer of such Residual Certificate. The
Securities Administrator shall be under no liability to any Person for any
registration of transfer of a Residual Certificate that is in fact not
permitted by this Section 6.02 or for making any distributions due on such
Residual Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of the Agreement so long as
the transfer was registered in accordance with this Section 6.02. The
Securities Administrator shall be entitled to recover from any Holder of a
Residual Certificate that was in fact not a Permitted Transferee at the
time such distributions were made all distributions made on such Residual
Certificate. Any such distributions so recovered by the Securities
Administrator shall be distributed and delivered by the Securities
Administrator to the prior Holder of such Residual Certificate that is a
Permitted Transferee.
(vii) If any Person other than a Permitted Transferee acquires any
Ownership Interest in a Residual Certificate in violation of the
restrictions in this Section 6.02, then the Securities Administrator,
based on information provided to the Securities Administrator by either
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 Servicers, the
Trustee, the Securities Administrator, the Certificate Registrar and any agent
of the Depositor, the 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 Servicers, the Trustee, the Securities
Administrator, the Certificate Registrar or any agent of the Servicers, the
Trustee, the Securities Administrator or the Certificate Registrar shall be
affected by notice to the contrary.
ARTICLE VII
THE DEPOSITOR AND THE SERVICERS
Section 7.01 Respective Liabilities of the Depositor and the
Servicers. The Depositor and the Servicers shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by the Depositor and the Servicers herein. By way of
illustration and not limitation, the Depositor is not liable for the servicing
and administration of the Mortgage Loans, nor is it obligated by Section 8.01 to
assume any obligations of either 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 a Servicer.
The Depositor and each 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 either Servicer may be merged
or consolidated, or any corporation resulting from any merger or consolidation
to which the Depositor or either Servicer shall be a party, or any Person
succeeding to the business of the Depositor or either Servicer, shall be the
successor of the Depositor or such 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 a Servicer shall be
qualified to service mortgage loans on behalf of FNMA or FHLMC.
Section 7.03 Limitation on Liability of the Depositor, the Servicers
and Others. None of the Depositor, the Servicers or any of the directors,
officers, employees or agents of the Depositor or of either Servicer shall be
under any liability to the Trust Estate or the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Servicers 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 Servicers and any
director, officer, employee or agent of the Depositor or either Servicer may
rely in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Depositor,
the Servicers and any director, officer, employee or agent of the Depositor or
either Servicer shall be indemnified by the Trust Estate and held harmless
against any loss, liability or expense incurred in connection with any legal
action relating to this Agreement or the Certificates, other than any loss,
liability or expense related to any specific Mortgage Loan or Mortgage Loans
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) and any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties hereunder or by reason of reckless disregard of obligations and duties
hereunder. None of the Depositor or either of the 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 Servicer may in its discretion undertake any such action
which it may deem necessary or desirable in respect to this Agreement and the
rights and duties of the parties hereto and the interests of the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Estate, and the Depositor and such Servicer shall be
entitled to be reimbursed therefor out of amounts attributable to the Mortgage
Loans on deposit in the related Servicer Custodial Account as provided by
Section 3.11.
Section 7.04 Depositor and Servicers Not to Resign. Subject to the
provisions of Section 7.02, none of the Depositor or the Servicers 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 Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Trustee and the Securities Administrator. No such
resignation by a Servicer shall become effective until the Securities
Administrator, the Trustee or a successor Servicer shall have assumed such
Servicer's responsibilities and obligations in accordance with Section 8.05
hereof.
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default. If any one of the following events
("Events of Default") shall occur and be continuing:
(a) any failure by either Servicer to deposit amounts in the related
Servicer Custodial Account in the amount and manner provided herein so as to
enable the Securities Administrator to distribute to Holders of Certificates any
payment required to be made under the terms of such Certificates and this
Agreement (other than the payments required to be made under Section 3.20) which
continues unremedied for a period of three days; or
(b) failure on the part of either Servicer duly to observe or
perform in any material respect any other covenants or agreements of such
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 Servicer by the Securities Administrator, the Trustee or the
Depositor, or to the Servicers, 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 either
Servicer, or for the winding up or liquidation of either Servicer's affairs, and
the continuance of any such decree or order unstayed and in effect for a period
of 60 consecutive days; or
(d) the consent by either 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
such Servicer or of or relating to substantially all of its property; or either
Servicer shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its creditors, or
voluntarily suspend payment of its obligations; or
(e) the failure of either Servicer to remit any Periodic Advance
required to be remitted by such Servicer pursuant to Section 3.20 which failure
continues unremedied at 3:00 p.m. Eastern time 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 shall not have been
remedied by the related Servicer, either the Trustee or the Depositor (or the
Securities Administrator in the case of an Event of Default of BANA) may, and at
the direction of the Holders of Certificates evidencing Voting Rights
aggregating not less than 51% of all Certificates affected thereby shall, by
notice then given in writing to the related Servicer (and to the Trustee and the
Securities Administrator (if applicable), if given by the Depositor, and to the
Depositor, if given by the Trustee or the Securities Administrator (if
applicable)), terminate all of the rights and obligations of such Servicer under
this Agreement. If an Event of Default described in clause (e) hereof shall
occur, the Trustee shall, by notice to the related Servicer and the Securities
Administrator, terminate all of the rights and obligations of the such Servicer
under this Agreement and in and to the Mortgage Loans and proceeds thereof and
the Securities Administrator (in the case of an Event of Default by BANA) or the
Trustee (in the case of an Event of Default by Xxxxx Fargo Bank) or a successor
Servicer appointed pursuant to Section 8.05 shall make the Advance which such
Servicer failed to make. On or after the receipt by a Servicer of such written
notice, all authority and power of such Servicer under this Agreement, whether
with respect to the Certificates or the Mortgage Loans or otherwise, shall pass
to and be vested in the Securities Administrator or the Trustee, as applicable,
pursuant to and under this Section 8.01 and Section 8.05(a), unless and until
such time as the Securities Administrator or the Trustee, as applicable, shall
appoint a successor Servicer pursuant to Section 8.05, and, without limitation,
the Securities Administrator or the Trustee, as applicable, is hereby authorized
and empowered to execute and deliver, on behalf of the related Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement of the Mortgage Loans and related documents, or otherwise,
including, without limitation, the recordation of the assignments of the
Mortgage Loans to it. Each Servicer agrees to cooperate with the Securities
Administrator or the Trustee, as applicable, in effecting the termination of the
responsibilities and rights of such Servicer hereunder, including, without
limitation, the transfer to the Securities Administrator or the Trustee, as
applicable, for the administration by it of all cash amounts that have been
deposited by such Servicer in the related Servicer Custodial Account or
thereafter received by such Servicer with respect to the Mortgage Loans. Upon
obtaining notice or knowledge of the occurrence of any Event of Default, the
Person obtaining such notice or knowledge shall give prompt written notice
thereof to Certificateholders at their respective addresses appearing in the
Certificate Register and to each Rating Agency. All costs and expenses
(including attorneys' fees) incurred in connection with transferring the Owner
Mortgage Files and Retained Mortgage Files to the successor Servicer and
amending this Agreement to reflect such succession as Servicer pursuant to this
Section 8.01 shall be paid by the predecessor Servicer. Notwithstanding the
termination of a Servicer pursuant hereto, such Servicer shall remain liable for
any causes of action arising out of any Event of Default occurring prior to such
termination.
Section 8.02 Remedies of Trustee. During the continuance of any
Event of Default, so long as such Event of Default shall not have been remedied,
the Trustee, in addition to the rights specified in Section 8.01, shall have the
right, in its own name as trustee of an express trust, to take all actions now
or hereafter existing at law, in equity or by statute to enforce its rights and
remedies and to protect the interests, and enforce the rights and remedies, of
the Certificateholders (including the institution and prosecution of all
judicial, administrative and other proceedings and the filing of proofs of claim
and debt in connection therewith). Except as otherwise expressly provided in
this Agreement, no remedy provided for by this Agreement shall be exclusive of
any other remedy, and each and every remedy shall be cumulative and in addition
to any other remedy and no delay or omission to exercise any right or remedy
shall impair any such right or remedy or shall be deemed to be a waiver of any
Event of Default.
Section 8.03 Directions by Certificateholders and Duties of Trustee
During Event of Default. During the continuance of any Event of Default, Holders
of Certificates evidencing Voting Rights aggregating not less than 25% of each
Class of Certificates affected thereby may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee under this Agreement; provided,
however, that the Trustee shall be under no obligation to pursue any such
remedy, or to exercise any of the trusts or powers vested in it by this
Agreement (including, without limitation, (a) the conducting or defending of any
administrative action or litigation hereunder or in relation hereto, and (b) the
terminating of either Servicer or any successor Servicer from its rights and
duties as servicer hereunder) at the request, order or direction of any of the
Certificateholders, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity satisfactory to it against the costs,
expenses and liabilities which may be incurred therein or thereby and, provided
further, that, subject to the provisions of Section 9.01, the Trustee shall have
the right to decline to follow any such direction if the Trustee, based upon an
Opinion of Counsel, determines that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith determines that the action or
proceeding so directed would subject the Trustee to a risk of personal liability
or be unjustly prejudicial to the non-assenting Certificateholders.
Section 8.04 Action upon Certain Failures of a Servicer and upon
Event of Default. In the event that a Responsible Officer of the Trustee or the
Securities Administrator shall have actual knowledge of any failure of either
Servicer specified in Section 8.01(a) or (b) which would become an Event of
Default upon such Servicer's failure to remedy the same after notice, the
Trustee or the Securities Administrator, as the case may be, shall give notice
thereof to such Servicer. If a Responsible Officer of the Trustee or the
Securities Administrator shall have knowledge of an Event of Default, the
Trustee or the Securities Administrator, as the case may be, shall give prompt
written notice thereof to the Certificateholders.
Section 8.05 Trustee to Act; Appointment of Successor.
(a) Within 90 days of the time a Servicer receives a notice of
termination pursuant to Section 8.01, the Securities Administrator or the
Trustee, as applicable (or other named successor), shall be the successor in all
respects to such Servicer in its capacity as servicer under this Agreement and
the transactions set forth or provided for herein and shall be subject to all
the responsibilities, duties and liabilities relating thereto placed on such
Servicer by the terms and provisions hereof or shall appoint a successor
pursuant to Section 3.07. Notwithstanding the foregoing, (i) the parties hereto
agree that the Securities Administrator or the Trustee, as applicable, in its
capacity as successor Servicer, immediately will assume all of the obligations
of such Servicer under this Agreement (including the obligation to make
Advances), (ii) the Securities Administrator or the Trustee, as applicable, in
its capacity as successor Servicer, shall not be responsible for the lack of
information and/or documents that it cannot obtain through reasonable efforts
and (iii) under no circumstances shall any provision of this Agreement be
construed to require the Securities Administrator or the Trustee, as applicable,
acting in its capacity as successor to a Servicer in its obligation to make
Advances, to advance, expend or risk its own funds or otherwise incur any
financial liability in the performance of its duties hereunder if it shall have
reasonable grounds for believing that such funds are non-recoverable. Subject to
Section 8.05(b), as compensation therefor, the Securities Administrator or the
Trustee, as applicable, shall be entitled to such compensation as the terminated
Servicer would have been entitled to hereunder if no such notice of termination
had been given. Notwithstanding the above, the Securities Administrator or the
Trustee, as applicable, may, if it shall be unwilling so to act, or shall, if it
is legally unable so to act, appoint, or petition a court of competent
jurisdiction to appoint, any established housing and home finance institution
having a net worth of not less than $10,000,000 as the successor to the
terminated Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of a Servicer hereunder; provided,
however, that any such institution appointed as successor Servicer shall not, as
evidenced in writing by each Rating Agency, adversely affect the then current
rating of any Class of Certificates immediately prior to the termination of the
terminated Servicer. The appointment of a successor Servicer shall not affect
any liability of the predecessor Servicer which may have arisen under this
Agreement prior to its termination as Servicer, nor shall any successor Servicer
be liable for any acts or omissions of the predecessor Servicer or for any
breach by such Servicer of any of its representations or warranties contained
herein or in any related document or agreement. Pending appointment of a
successor to the terminated Servicer hereunder, unless the Securities
Administrator or the Trustee, as applicable, is prohibited by law from so
acting, the Securities Administrator or the Trustee, as applicable, shall act in
such capacity as provided above. The Securities Administrator or the Trustee, as
applicable, and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. All
Servicing Transfer Costs shall be paid by the predecessor Servicer upon
presentation of reasonable documentation of such costs, and if such predecessor
Servicer defaults in its obligation to pay such costs, such costs shall be paid
by the successor Servicer or the Securities Administrator or the Trustee, as
applicable (in which case the successor Servicer, the Securities Administrator
or the Trustee, as applicable, shall be entitled to reimbursement therefor from
the assets of the Trust).
(b) In connection with the appointment of a successor Servicer or
the assumption of the duties of a Servicer, as specified in Section 8.05(a), the
Securities Administrator or the Trustee, as applicable, may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans serviced by the predecessor Servicer as it and such successor shall agree
not to exceed the related Servicing Fee Rate.
(c) Any successor, including the Securities Administrator or the
Trustee, as applicable, to a Servicer as servicer shall during the term of its
service as servicer maintain in force (i) a policy or policies of insurance
covering errors and omissions in the performance of its obligations as servicer
hereunder and (ii) a fidelity bond in respect of its officers, employees and
agents to the same extent as each 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 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 a Servicer or the Depositor hereunder.
(b) No provision of this Agreement shall be construed to relieve the
Trustee or the Securities Administrator from liability for its own grossly
negligent action, its own grossly negligent failure to act or its own willful
misfeasance; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all such Events of Default which may have occurred,
the duties and obligations of the Trustee and the Securities Administrator
shall be determined solely by the express provisions of this Agreement,
the Trustee and the Securities Administrator shall not be liable except
for the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and the Securities Administrator
and, in the absence of bad faith on the part of the Trustee and the
Securities Administrator, the Trustee and the Securities Administrator may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and the Securities Administrator by the Depositor
or the Servicers and which on their face, do not contradict the
requirements of this Agreement;
(ii) Neither the Trustee (in its individual capacity) nor the
Securities Administrator shall be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee or the Securities Administrator, as the case may
be, unless it shall be proved that the such party 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
(other than a default in payment to the Trustee) specified in clauses (a)
and (b) of Section 8.01 or an Event of Default under clauses (c), (d) and
(e) and 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 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
Servicer, the Trustee, the Depositor or any Certificateholder; and
(v) Except to the extent provided in Section 8.05 in respect of the
Trustee and the Securities Administrator, 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 Trustee to perform, or be
responsible for the manner of performance of, any of the obligations of a
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 or the Trustee, as the case
may be, 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 and authentication of the Certificates)
shall be taken as the statements of the Depositor or 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.
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 or the Securities
Administrator shall assume the duties of a Servicer pursuant to Section 8.05 and
thereupon only for the acts or omissions of the successor Servicer); the
validity of the assignment of any Mortgage Loan to the Trustee or of any
intervening assignment; the completeness of any Mortgage Loan; the performance
or enforcement of any Mortgage Loan (other than if the Trustee or the Securities
Administrator shall assume the duties of a Servicer pursuant to Section 8.05 and
thereupon only for the acts or omissions of the Trustee or the Securities
Administrator as successor Servicer); the compliance by the Depositor or the
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 a Servicer or any loss resulting
therefrom, it being understood that the Trustee and the Securities Administrator
shall remain responsible for any Trust property that it may hold in its
individual capacity; the acts or omissions of any of the Depositor, the
Servicers (other than if the Trustee or the Securities Administrator shall
assume the duties of a Servicer pursuant to Section 8.05 and thereupon only for
the acts or omissions of the Trustee or the Securities Administrator as
successor Servicer), any Subservicer or any Mortgagor; any action of the
Servicer (other than if the Trustee or the Securities Administrator shall assume
the duties of the Servicer pursuant to Section 8.05 and thereupon only for the
acts or omissions of the Trustee or the Securities Administrator as successor
Servicer) or any Subservicer taken in the name of the Securities Administrator;
the failure of a Servicer or any Subservicer to act or perform any duties
required of it as agent of the Trust or the Securities Administrator hereunder;
or any action by the Trustee or the Securities Administrator taken at the
instruction of a Servicer (other than if the Trustee or the Securities
Administrator shall assume the duties of a Servicer pursuant to Section 8.05 and
thereupon only for the acts or omissions of the Trustee or the Securities
Administrator as successor Servicer); provided, however, that the foregoing
shall not relieve the Trustee or the Securities Administrator of its obligation
to perform its duties under this Agreement, including, without limitation, the
review by the Trustee or Custodian on behalf of the Trustee of the Owner
Mortgage Files (and Retained Mortgage Files, if applicable) pursuant to Section
2.02. The Trustee shall execute and the Securities Administrator shall file any
financing or continuation statement in any public office at any time required to
maintain the perfection of any security interest or lien granted to it
hereunder.
Section 9.04 Trustee and Securities Administrator May Own
Certificates. Each of the Trustee and the Securities Administrator in their
individual or any other capacities may become the owner or pledgee of
Certificates with the same rights it would have if it were not Trustee or the
Securities Administrator and may otherwise deal with the Servicer, any
Subservicer or any of their respective affiliates with the same right it would
have if it were not the Trustee or the Securities Administrator.
Section 9.05 Eligibility Requirements for Trustee and the Securities
Administrator. The Trustee and the Securities Administrator hereunder shall at
all times be (a) an institution the deposits of which are fully insured by the
FDIC and (b) a corporation or banking association organized and doing business
under the laws of the United States of America or of any State, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority and (c) with respect to every successor trustee or
securities administrator hereunder either an institution (i) the long-term
unsecured debt obligations of which are rated at least "A" by Fitch 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 or either
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
Servicer, the Depositor or an affiliate of the Depositor unless the Securities
Administrator is in an institutional trust department of the Securities
Administrator, (ii) must be authorized to exercise corporate trust powers under
the laws of its jurisdiction of organization, and (iii) must be rated at least
"A/F1" by Fitch and "A-1" by S&P, if Fitch and S&P, as applicable, is a Rating
Agency, or the equivalent rating by Xxxxx'x Investors Service, Inc. (or such
other rating acceptable to Fitch 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
terminated 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 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 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 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 Servicers and the Trustee
or the Securities Administrator, as applicable; the 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 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 Owner Mortgage
Files (and Retained Mortgage Files, if applicable) 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 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 the Servicers fail to mail such notice within ten days after acceptance of
appointment by the successor Trustee or Securities Administrator, the successor
Trustee or Securities Administrator, as the case may be, shall cause such notice
to be mailed at the expense of the Servicers.
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 related
Servicer and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee as co-trustee or separate trustee of all or any part of the Trust
Estate, and to vest in such Person or Persons, in such capacity, such title to
the Trust Estate, or any part thereof, and, subject to the other provision of
this Section 9.09, such powers, duties, obligations, rights and trusts as such
Servicer and the Trustee may consider necessary or desirable. If a Servicer
shall not have joined in such appointment within ten days after the receipt by
it of a request to do so, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor Trustee under Section 9.05 and no
notice to Holders of Certificates of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 9.07. The Securities
Administrator shall be responsible for the fees of any co-trustee or separate
trustee appointed hereunder.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 9.09, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to a 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 Servicers 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 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 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 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 Securities Administrator, as compensation for
its activities hereunder, shall be entitled to receive on each Distribution Date
an amount equal to the Securities Administrator Fee for such Distribution Date
pursuant to Section 5.02(a). The Trustee, as compensation for its services
hereunder, shall be entitled to a fee in an amount agreed upon between the
Trustee and the Securities Administrator, payable by the Securities
Administrator out of its own funds and not out of any funds of the Trust Estate.
The Trustee and the Securities Administrator, as the case may be, and any
director, officer, employee or agent of the Trustee or the Securities
Administrator, as the case may be, shall be indemnified and held harmless by the
Trust against any claims, damage, loss, liability or expense (including
reasonable attorney's fees) (a) incurred in connection with or arising from or
relating to (i) this Agreement, (ii) the Certificates, or (iii) the performance
of any of the Trustee's or Securities Administrator's, as the case may be,
duties hereunder, other than any claims, damage, loss, liability or expense
incurred by reason of willful misfeasance, bad faith or gross negligence in the
performance of any of the Trustee's or Securities Administrator's, as the case
may be, duties hereunder, (b) resulting from any tax or information return which
was prepared by, or should have been prepared by, the related 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
Servicers, appoint one or more Custodians to hold all or a portion of the Owner
Mortgage Files (and Retained Mortgage Files, if applicable) as agent for the
Trustee, by entering into a custodial agreement in a form acceptable to the
Depositor and the Servicers. 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 Owner Mortgage File or Retained Mortgage
File.
Section 9.13 Paying Agents. The Securities Administrator may appoint
one or more Paying Agents (each, a "Paying Agent") which shall be authorized to
act on behalf of the Securities Administrator in making withdrawals from the
Certificate Account and distributions to Certificateholders as provided in
Section 3.08 and Section 5.02. Wherever reference is made in this Agreement to
the withdrawal from the Certificate Account by the Securities Administrator,
such reference shall be deemed to include such a withdrawal on behalf of the
Securities Administrator by a Paying Agent. Initially, the Paying Agent shall be
Xxxxx Fargo Bank, 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 Servicers and must be a corporation or
banking association organized and doing business under the laws of the United
States of America or of any state, having (except in the case of the Trustee or
the Securities Administrator) a principal office and place of business in New
York, New York, having a combined capital and surplus of at least $15,000,000,
authorized under such laws to do a trust business and subject to supervision or
examination by federal or state authorities.
Any corporation into which any Paying Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Paying Agent shall be
a party, or any corporation succeeding to the corporate agency business of any
Paying Agent, shall continue to be the Paying Agent provided that such
corporation after the consummation of such merger, conversion, consolidation or
succession meets the eligibility requirements of this Section 9.13.
Any Paying Agent may at any time resign by giving written notice of
resignation to the Trustee, the Securities Administrator and to the 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 Servicers,
at any time terminate the agency of any Paying Agent by giving written notice of
termination to such Paying Agent and to the 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 Servicers, a successor Paying Agent, shall give
written notice of such appointment to the 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 Servicer or the Depositor hereunder shall occur and be
continuing, the Trustee, in its discretion, may proceed to protect and enforce
its rights and the rights of the Holders of Certificates under this Agreement by
a suit, action or proceeding in equity or at law or otherwise, whether for the
specific performance of any covenant or agreement contained in this Agreement or
in aid of the execution of any power granted in this Agreement or for the
enforcement of any other legal, equitable or other remedy, as the Trustee, being
advised by counsel, shall deem most effectual to protect and enforce any of the
rights of the Trustee and the Certificateholders.
Section 9.17 Waiver of Bond Requirement. The Trustee shall be
relieved of, and each Certificateholder hereby waives, any requirement of any
jurisdiction in which the Trust, or any part thereof, may be located that the
Trustee post a bond or other surety with any court, agency or body whatsoever.
Section 9.18 Waiver of Inventory, Accounting and Appraisal
Requirement. The Trustee shall be relieved of, and each Certificateholder hereby
waives, any requirement of any jurisdiction in which the Trust, or any part
thereof, may be located that the Trustee file any inventory, accounting or
appraisal of the Trust with any court, agency or body at any time or in any
manner whatsoever.
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase by Xxxxx Fargo Bank or
Liquidation of All Mortgage Loans. Subject to Section 10.02, the respective
obligations and responsibilities of the Depositor, the 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 by Xxxxx Fargo Bank, as a Servicer,
of all Mortgage Loans and all REO Property remaining in the Trust Estate at a
price equal to the sum of (i) 100% of the Stated Principal Balance of each
Mortgage Loan (other than any Mortgage Loan as to which REO Property has been
acquired and whose fair market value is included pursuant to clause (ii) below),
(ii) the fair market value of such REO Property, plus any Class Unpaid Interest
Shortfall for any Class of Certificates as well as one month's interest 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)
and (iii) any Reimbursement Amount owed to the Trust pursuant to Section 2.02 or
(b) the final payment or other liquidation (or any advance with respect thereto)
of the last Mortgage Loan remaining in the Trust Estate or the disposition of
all REO Property.
Xxxxx Fargo Bank, as a Servicer, may not exercise its purchase
option until all Reimbursement Amounts owed to the Trust have been paid. The
Securities Administrator shall notify the Seller upon notice of Xxxxx Fargo
Bank's intent to exercise its purchase option of any Reimbursement Amount
outstanding.
Regardless of the foregoing, in no event shall the Trust created
hereby continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof.
The right of Xxxxx Fargo Bank to repurchase all of the Mortgage
Loans is conditioned upon (A) the aggregate Stated Principal Balance of the
Mortgage Loans as of the Final Distribution Date being less than 1% of the
aggregate Cut-off Date Principal Balance and (B) the sum of clause (a)(i) and
(ii) of the second preceding paragraph being less than or equal to the aggregate
fair market value of the Mortgage Loans (other than any Mortgage Loan as to
which REO Property has been acquired) and the REO Properties; provided, however,
that this clause (B) shall not apply to any purchase by Xxxxx Fargo Bank if, at
the time of the purchase, Xxxxx Fargo Bank 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 purposes of this paragraph and the second
preceding paragraph will be determined by Xxxxx Fargo Bank as of the close of
business on the third Business Day next preceding the date upon which notice of
any such termination is furnished to Certificateholders pursuant to the fourth
paragraph of this Article X. If such right is exercised, the Trustee or
Custodian on behalf of the Trustee shall, promptly following payment of the
purchase price, release to Xxxxx Fargo Bank or its designee the Owner Mortgage
Files (and Retained Mortgage Files, if applicable) pertaining to the Mortgage
Loans being purchased.
Notice of any termination, specifying the Final Distribution Date
(which shall be a date that would otherwise be a Distribution Date) upon which
the Certificateholders may surrender their Certificates to the Securities
Administrator for payment of the final distribution and for cancellation, shall
be given promptly by Xxxxx Fargo Bank (if exercising its right to purchase the
assets of the Trust) or by the Securities Administrator (in any other case) by
letter to Certificateholders mailed not earlier than the 10th day and not later
than the 15th day of the month next preceding the month of such final
distribution specifying (1) the Final Distribution Date upon which final payment
of the Certificates will be made upon presentation and surrender of Certificates
at the office or agency of the Securities Administrator therein designated, (2)
the amount of any such final payment and (3) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made only
upon presentation and surrender of the Certificates at the office or agency of
the Securities Administrator therein specified. If Xxxxx Fargo Bank is obligated
to give notice to Certificateholders as aforesaid, it shall give such notice to
the Trustee, the Securities Administrator and the Certificate Registrar at the
time such notice is given to Certificateholders. In the event such notice is
given by Xxxxx Fargo Bank, Xxxxx Fargo Bank shall deposit in the Certificate
Account on or before the Final Distribution Date in immediately available funds
an amount equal to the amount necessary to make the amount, if any, on deposit
in the Certificate Account on the Final Distribution Date equal to the purchase
price for the related assets of the Trust computed as above provided together
with a statement as to the amount to be distributed on each Class of
Certificates pursuant to the next succeeding paragraph.
Upon presentation and surrender of the Certificates, the Securities
Administrator shall cause to be distributed to Certificateholders of each Class,
in the order set forth in Section 5.02 hereof, on the Final Distribution Date
and in proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount equal to (I) as to each Class of
Certificates, the Class Certificate Balance thereof plus 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, the amounts, if any, which remain on
deposit in the Certificate Account (and are deemed to be on deposit in the
Upper-Tier Certificate Sub-Account) (other than the amounts retained to meet
claims) after application pursuant to clause (I) above. An amount shall be
distributed in respect of interest and principal to the Uncertificated
Lower-Tier Interests in the same manner as principal and interest are
distributed to the Uncertificated Lower-Tier Interests as provided in Section
5.02.
If all of the Certificateholders do not surrender their Certificates
for final payment and cancellation on or before the Final Distribution Date, the
Securities Administrator shall on such date cause all funds in the Certificate
Account not distributed in final distribution to Certificateholders of such
Group to continue to be held by the Securities Administrator in an Eligible
Account for the benefit of such Certificateholders and Xxxxx Fargo Bank (if it
exercised its right to purchase the assets of the Trust Estate) or the
Securities Administrator (in any other case) shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice all the applicable Certificates shall not have
been surrendered for cancellation, the Securities Administrator may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Certificates, and
the cost thereof shall be paid out of the funds on deposit in such Eligible
Account.
Section 10.02 Additional Termination Requirements.
(a) If Xxxxx Fargo Bank exercises its purchase option as provided in
Section 10.01, the Trust shall be terminated in accordance with the following
additional requirements, unless the Securities Administrator and the Trustee
have received an Opinion of Counsel to the effect that the failure of the Trust
to comply with the requirements of this Section 10.02 will not (i) result in the
imposition of taxes on "prohibited transactions" of the Trust as defined in
Section 860F of the Code, or (ii) cause the Trust Estate to fail to qualify as
two separate REMICs at any time that any Certificates are outstanding:
(i) within 90 days prior to the Final Distribution Date set forth in
the notice given by the Depositor under Section 10.01, the Securities
Administrator shall sell all of the assets of the Trust Estate to Xxxxx
Fargo Bank for cash; and
(ii) the notice given by Xxxxx Fargo Bank or the Securities
Administrator pursuant to Section 10.01 shall provide that such notice
constitutes the adopting of a plan of complete liquidation of the
Upper-Tier REMIC and Lower-Tier REMIC as of the date of such notice (or,
if earlier, the date on which such notice was mailed to
Certificateholders). The Securities Administrator shall also ensure that
such date is specified in the final tax returns of the Upper-Tier REMIC
and Lower-Tier REMIC.
(b) By their acceptance of a Residual Certificate, 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 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 the Upper-Tier REMIC and Lower-Tier
REMIC as REMICs at all times that any Certificates are outstanding or to avoid
or minimize the risk of the imposition of any tax on either REMIC pursuant to
the Code that would be a claim against the Trust Estate, provided that (a) the
Trustee and the Securities Administrator have received an Opinion of Counsel to
the effect that such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action shall not, as evidenced by such Opinion of Counsel,
adversely affect in any material respect the interests of any Certificateholder,
(iv) to change the timing and/or nature of deposits into the Certificate Account
provided that (a) such change shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any Certificateholder
and (b) such change shall not adversely affect the then-current rating of the
Senior Certificates, the Class B-1 Certificates, the Class B-2 Certificates, the
Class B-3 Certificates, the Class B-4 Certificates or the Class B-5 Certificates
as evidenced by a letter from each Rating Agency rating such Certificates to
such effect and (v) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder, provided that the
amendment shall not be deemed to adversely affect in any material respect the
interests of the Certificateholders and no Opinion of Counsel to that effect
shall be required if the Person requesting the amendment obtains a letter from
each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Certificates.
This Agreement may also be amended from time to time by the
Depositor, the 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 the
Upper-Tier REMIC or Lower-Tier REMIC as REMICs and notice of the conclusion
expressed in such Opinion of Counsel shall be included with any such
solicitation. An amendment made with the consent of all Certificateholders and
executed in accordance with this Section 11.01 shall be permitted or authorized
by this Agreement notwithstanding that such Opinion of Counsel may conclude that
such amendment would adversely affect the qualification of the Upper-Tier REMIC
and Lower-Tier REMIC as REMICs. Promptly after the execution of any such
amendment or consent the Securities Administrator shall furnish written
notification of the substance of or a copy of such amendment to each
Certificateholder and to each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable requirements as the Securities Administrator may prescribe.
Section 11.02 Recordation of Agreement; Counterparts. This Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by either Servicer and at its expense on direction by the Securities
Administrator, who will act at the direction of Holders of Certificates
evidencing not less than 50% of all Voting Rights, but only upon direction of
the Securities Administrator accompanied by an Opinion of Counsel to the effect
that such recordation materially and beneficially affects the interests of
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 11.03 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust, or the obligations of the parties hereto, nor shall anything
herein set forth, or contained in the terms of the Certificates, be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of default and of the continuance thereof, as provided herein, and unless also
the Holders of Certificates evidencing Percentage Interests aggregating not less
than 25% of each Class of Certificates affected thereby shall have made written
request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding; it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder, or to enforce
any right under this Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all Certificateholders. For the protection
and enforcement of the provisions of this Section 11.03, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 11.04 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT APPLICATION OF THE
CONFLICTS OF LAWS PROVISIONS THEREOF, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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 Servicers, (i) Xxxxx Fargo Bank, N.A.,
Xxx Xxxx Xxxxxx, Xxx Xxxxxx, XX, 00000-0000, Attention: Xxxx Xxxxx -- MAC
X2401-042, with a copy to General Counsel -- MAC X2401-06T, and (ii) Bank of
America, N.A., 000 X. Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
General Counsel and Chief Financial Officer, (c) in the case of the Securities
Administrator, Xxxxx Fargo Bank, N.A., X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000,
Attention: BAFC, Series 2004-A, and for overnight delivery purposes, Xxxxx Fargo
Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention:
BAFC, Series 2004-A, with a copy to Xxxxx Fargo Bank, N.A., Sixth and Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, 00000, Attention: BAFC, Series 2004-A, (d) in
the case of the Trustee, Wachovia Bank, National Association, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Structured Finance Services,
BAFC 2004-A, (e) in the case of Fitch, Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attn: Residential Mortgage Surveillance Group, and (f) in
the case of S&P, Standard & Poor's Ratings Services, 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. Any notice required or permitted to be mailed to a
Certificateholder shall be given by first class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice to a
Certificateholder so mailed within the time prescribed in this Agreement shall
be conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
Section 11.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 11.07 Certificates Nonassessable and Fully Paid. It is the
intention of the Securities Administrator that Certificateholders shall not be
personally liable for obligations of the Trust Estate, that the beneficial
ownership interests represented by the Certificates shall be nonassessable for
any losses or expenses of the Trust Estate or for any reason whatsoever, and
that Certificates upon execution, countersignature and delivery thereof by the
Securities Administrator pursuant to Section 6.01 are and shall be deemed fully
paid.
Section 11.08 Access to List of Certificateholders. The Certificate
Registrar will furnish or cause to be furnished to the Trustee and the
Securities Administrator, within 15 days after the receipt of a request by the
Trustee and/or the Securities Administrator in writing, a list, in such form as
the Trustee and/or the Securities Administrator may reasonably require, of the
names and addresses of the Certificateholders as of the most recent Record Date
for payment of distributions to Certificateholders.
If three or more Certificateholders apply in writing to the
Securities Administrator, and such application states that the applicants desire
to communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and is accompanied by a copy of the
communication which such applicants propose to transmit, then the Securities
Administrator shall, within five Business Days after the receipt of such
application, afford such applicants access during normal business hours to the
most recent list of Certificateholders held by the Securities Administrator. If
such a list is as of a date more than 90 days prior to the date of receipt of
such applicants' request, the Securities Administrator shall promptly request
from the Certificate Registrar a current list as provided above, and shall
afford such applicants access to such list promptly upon receipt.
Every Certificateholder, by receiving and holding such list, agrees
with the Certificate Registrar and the Securities Administrator that neither the
Certificate Registrar nor the Securities Administrator shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Certificateholders hereunder, regardless of the source from
which such information was derived.
Section 11.09 Recharacterization. The parties to this Agreement
intend the conveyance by the Depositor to the Trustee of all of its right, title
and interest in and to the Mortgage Loans pursuant to this Agreement to
constitute a purchase and sale and not a loan. Notwithstanding the foregoing, to
the extent that such conveyance is held not to constitute a sale under
applicable law, it is intended that this Agreement shall constitute a security
agreement under applicable law and that the Depositor shall be deemed to have
granted to the Trustee a first priority security interest in all of the
Depositor's right, title and interest in and to the Mortgage Loans.
IN WITNESS WHEREOF, the Depositor, the Servicers, 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:
BANK OF AMERICA, N.A.,
as Servicer
By:______________________________________
Name:
Title:
XXXXX FARGO BANK, N.A.,
as Servicer
By:______________________________________
Name:
Title:
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By:______________________________________
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By:______________________________________
Name:
Title:
STATE OF MARYLAND )
) ss.:
COUNTY OF COLUMBIA )
)
On the __th day of August, 2004, before me, a notary public in and
for the State of Maryland, personally appeared _________________, known to me
who, being by me duly sworn, did depose and say that s/he is a _______________
of Xxxxx Fargo Bank, N.A., a national banking association, one of the parties
that executed the foregoing instrument; and that s/he signed his name thereto by
order of the Board of Directors of such association.
_______________________________________
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
)
On the __th day of August, 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
Banc of America Funding Corporation, a Delaware corporation, one of the parties
that executed the foregoing instrument; and that she signed her name thereto by
order of the Board of Directors of such corporation.
_______________________________________
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
)
On the __th day of August, 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 she signed her name
thereto by order of the Board of Directors of such association.
_______________________________________
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF )
) ss.:
COUNTY OF )
)
On the __th day of August, 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 Bank of America, N.A., a national banking association, one
of the parties that executed the foregoing instrument; and that s/he signed his
name thereto by order of the Board of Directors of such corporation.
_______________________________________
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF )
) ss.:
COUNTY OF )
)
On the __th day of August, 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 Xxxxx Fargo Bank, N.A., a national banking association,
one of the parties that executed the foregoing instrument; and that s/he signed
his name thereto by order of the Board of Directors of such corporation.
_______________________________________
Notary Public
[Notarial Seal]
My commission expires ____________.
EXHIBIT A-1-A-1
[FORM OF FACE OF CLASS 1-A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-A
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-A
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: August 1, 2004
First Distribution Date: September 20, 2004
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $32,150,000.00
Pass-Through Rate: Variable
CUSIP No.: 06051G AV 1
ISIN No.: US06051GAV14
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 August 27, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., a servicer
(a "Servicer"), Bank of America, N.A., a servicer (a "Servicer"), Xxxxx Fargo
Bank, N.A., as securities administrator (the "Securities Administrator"), and
Wachovia Bank, National Association, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers, 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.
Interest will accrue on the Class 1-A-1 Certificates at a per annum rate
equal to the weighted average of the Net Mortgage Interest Rates of the Group 1
Mortgage Loans (based on the Stated Principal Balances of the Group 1 Mortgage
Loans on the due date in the month preceding the month of such Distribution
Date).
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-2
[FORM OF FACE OF CLASS 1-A-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-A
Class 1-A-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-A
Class 1-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: August 1, 2004
First Distribution Date: September 20, 2004
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $910,000.00
Pass-Through Rate: Variable
CUSIP No.: 06051G AW 9
ISIN No.: US06051GAW96
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 August 27, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., a servicer
(a "Servicer"), Bank of America, N.A., a servicer (a "Servicer"), Xxxxx Fargo
Bank, N.A., as securities administrator (the "Securities Administrator"), and
Wachovia Bank, National Association, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers, 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.
Interest will accrue on the Class 1-A-2 Certificates at a per annum rate
equal to the weighted average of the Net Mortgage Interest Rates of the Group 1
Mortgage Loans (based on the Stated Principal Balances of the Group 1 Mortgage
Loans on the due date in the month preceding the month of such Distribution
Date).
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-3
[FORM OF FACE OF CLASS 1-A-3 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-A
Class 1-A-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-A
Class 1-A-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: August 1, 2004
First Distribution Date: September 20, 2004
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $104,638,000.00
Pass-Through Rate: Variable
CUSIP No.: 06051G AX 7
ISIN No.: US06051GAX79
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 August 27, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., a servicer
(a "Servicer"), Bank of America, N.A., a servicer (a "Servicer"), Xxxxx Fargo
Bank, N.A., as securities administrator (the "Securities Administrator"), and
Wachovia Bank, National Association, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers, 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.
Interest will accrue on the Class 1-A-3 Certificates at a per annum rate
equal to the weighted average of the Net Mortgage Interest Rates of the Group 1
Mortgage Loans (based on the Stated Principal Balances of the Group 1 Mortgage
Loans on the due date in the month preceding the month of such Distribution
Date).
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-4
[FORM OF FACE OF CLASS 1-A-4 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-A
Class 1-A-4
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-A
Class 1-A-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: August 1, 2004
First Distribution Date: September 20, 2004
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $8,180,000.00
Pass-Through Rate: Variable
CUSIP No.: 06051G AY 5
ISIN No.: US06051GAY52
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 August 27, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., a servicer
(a "Servicer"), Bank of America, N.A., a servicer (a "Servicer"), Xxxxx Fargo
Bank, N.A., as securities administrator (the "Securities Administrator"), and
Wachovia Bank, National Association, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers, 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.
Interest will accrue on the Class 1-A-4 Certificates at a per annum rate
equal to the weighted average of the Net Mortgage Interest Rates of the Group 1
Mortgage Loans (based on the Stated Principal Balances of the Group 1 Mortgage
Loans on the due date in the month preceding the month of such Distribution
Date).
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-R
[FORM OF FACE OF CLASS 1-A-R CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-A
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 RESIDUAL CERTIFICATE IN VIOLATION OF
SUCH RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN
THE PURPORTED TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-A
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: August 1, 2004
First Distribution Date: September 20, 2004
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $50.00
Pass-Through Rate: Variable
CUSIP No.: 06051G AZ 2
ISIN No.: US06051GAZ28
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 August 27, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., a servicer
(a "Servicer"), Bank of America, N.A., a servicer (a "Servicer"), Xxxxx Fargo
Bank, N.A., as securities administrator (the "Securities Administrator"), and
Wachovia Bank, National Association, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers, 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.
Interest will accrue on the Class 1-A-R Certificates at a per annum rate
equal to the weighted average of the Net Mortgage Interest Rates of the Group 1
Mortgage Loans (based on the Stated Principal Balances of the Group 1 Mortgage
Loans on the due date in the month preceding the month of such Distribution
Date).
Any distribution of the proceeds of any remaining assets of the
Certificate Account will be made only upon presentment and surrender of this
Class 1-A-R Certificate at the Corporate Trust Office of the Securities
Administrator.
Each Person who has or who acquires this Class 1-A-R Certificate shall be
deemed by the acceptance or acquisition thereof to have agreed to be bound by
the following provisions and the rights of each Person acquiring this Class
1-A-R Certificate are expressly subject to the following provisions: (i) each
Person holding or acquiring this Class 1-A-R Certificate shall be a Permitted
Transferee and shall promptly notify the Securities Administrator of any change
or impending change in its status as a Permitted Transferee; (ii) no Person
shall acquire an ownership interest in this Class 1-A-R Certificate unless such
ownership interest is a pro rata undivided interest; (iii) in connection with
any proposed transfer of this Class 1-A-R Certificate, the Securities
Administrator shall require delivery to it, in form and substance satisfactory
to it, of an affidavit in the form of Exhibit I to the Pooling and Servicing
Agreement; (iv) notwithstanding the delivery of an affidavit by a proposed
transferee under clause (iii) above, if a Responsible Officer of the Securities
Administrator has actual knowledge that the proposed transferee is not a
Permitted Transferee, no transfer of any Ownership Interest in this Residual
Certificate to such proposed transferee shall be effected; (v) this Residual
Certificate may not be purchased by or transferred to any Person that is not a
U.S. Person, unless (A) such Person holds this Residual Certificate in
connection with the conduct of a trade or business within the United States and
furnishes the transferor and the Securities Administrator with an effective
Internal Revenue Service Form W-8ECI (or any successor thereto) or (B) the
transferee delivers to both the transferor and the Securities Administrator an
Opinion of Counsel from a nationally-recognized tax counsel to the effect that
such transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of this Residual
Certificate will not be disregarded for federal income tax purposes; (vi) any
attempted or purported transfer of this Class 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 Servicers, will provide to the Internal
Revenue Service, and to the Persons specified in Section 860E(e)(3) and (6) of
the Code, information needed to compute the tax imposed under Section 860E(e) of
the Code on transfers of residual interests to disqualified organizations.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT 1-A-LR
[FORM OF FACE OF CLASS 1-A-LR CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-A
Class 1-A-LR
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CLASS 1-A-LR CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW WHICH IS SIMILAR
TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), OR A PERSON ACTING ON BEHALF OF
OR INVESTING ASSETS OF A PLAN.
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN TAX RELATED TRANSFER
RESTRICTIONS DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT. ANY
ATTEMPTED OR PURPORTED TRANSFER OF THIS RESIDUAL CERTIFICATE IN VIOLATION OF
SUCH RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN
THE PURPORTED TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-A
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: August 1, 2004
First Distribution Date: September 20, 2004
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $50.00
Pass-Through Rate: Variable
CUSIP No.: 06051G BA 6
ISIN No.: US06051GBA67
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 August 27, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., a servicer
(a "Servicer"), Bank of America, N.A., a servicer (a "Servicer"), Xxxxx Fargo
Bank, N.A, as securities administrator (the "Securities Administrator"), and
Wachovia Bank, National Association, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers, 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.
Interest will accrue on the Class 1-A-LR Certificates at a per annum rate
equal to the weighted average of the Net Mortgage Interest Rates of the Group 1
Mortgage Loans (based on the Stated Principal Balances of the Group 1 Mortgage
Loans on the due date in the month preceding the month of such Distribution
Date).
Any distribution of the proceeds of any remaining assets of the
Certificate Account will be made only upon presentment and surrender of this
Class 1-A-LR Certificate at the Corporate Trust Office of the Securities
Administrator.
Each Person who has or who acquires this Class 1-A-LR Certificate shall be
deemed by the acceptance or acquisition thereof to have agreed to be bound by
the following provisions and the rights of each Person acquiring this Class
1-A-LR Certificate are expressly subject to the following provisions: (i) each
Person holding or acquiring this Class 1-A-LR Certificate shall be a Permitted
Transferee and shall promptly notify the Securities Administrator of any change
or impending change in its status as a Permitted Transferee; (ii) no Person
shall acquire an ownership interest in this Class 1-A-LR Certificate unless such
ownership interest is a pro rata undivided interest; (iii) in connection with
any proposed transfer of this Class 1-A-LR Certificate, the Securities
Administrator shall require delivery to it, in form and substance satisfactory
to it, of an affidavit in the form of Exhibit I to the Pooling and Servicing
Agreement; (iv) notwithstanding the delivery of an affidavit by a proposed
transferee under clause (iii) above, if a Responsible Officer of the Securities
Administrator has actual knowledge that the proposed transferee is not a
Permitted Transferee, no transfer of any Ownership Interest in this Residual
Certificate to such proposed transferee shall be effected; (v) this Residual
Certificate may not be purchased by or transferred to any Person that is not a
U.S. Person, unless (A) such Person holds this Residual Certificate in
connection with the conduct of a trade or business within the United States and
furnishes the transferor and the Securities Administrator with an effective
Internal Revenue Service Form W-8ECI (or any successor thereto) or (B) the
transferee delivers to both the transferor and the Securities Administrator an
Opinion of Counsel from a nationally-recognized tax counsel to the effect that
such transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of this Residual
Certificate will not be disregarded for federal income tax purposes; (vi) any
attempted or purported transfer of this Class 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 Servicers, will provide to the Internal
Revenue Service, and to the Persons specified in Section 860E(e)(3) and (6) of
the Code, information needed to compute the tax imposed under Section 860E(e) of
the Code on transfers of residual interests to disqualified organizations.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-2-A-1
[FORM OF FACE OF CLASS 2-A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-A
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-A
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: August 1, 2004
First Distribution Date: September 20, 2004
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $180,149,000.00
Pass-Through Rate: Variable
CUSIP No.: 06051G BB 4
ISIN No.: US06051GBB41
THIS CERTIFIES THAT CEDE & CO. 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 August 27, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., a servicer
(a "Servicer"), Bank of America, N.A., a servicer (a "Servicer"), Xxxxx Fargo
Bank, N.A., as securities administrator (the "Securities Administrator"), and
Wachovia Bank, National Association, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers, 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.
Interest will accrue on the Class 2-A-1 Certificates at a per annum rate
equal to the weighted average of the Net Mortgage Interest Rates of the Group 2
Mortgage Loans (based on the Stated Principal Balances of the Group 2 Mortgage
Loans on the due date in the month preceding the month of such Distribution
Date).
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-3-A-1
[FORM OF FACE OF CLASS 3-A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-A
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-A
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: August 1, 2004
First Distribution Date: September 20, 2004
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $39,106,000.00
Pass-Through Rate: Variable
CUSIP No.: 06051G BC 2
ISIN No.: US06051GBC24
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 August 27, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., a servicer
(a "Servicer"), Bank of America, N.A., a servicer (a "Servicer"), Xxxxx Fargo
Bank, N.A., as securities administrator (the "Securities Administrator"), and
Wachovia Bank, National Association, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers, 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.
Interest will accrue on the Class 3-A-1 Certificates at a per annum rate
equal to the weighted average of the Net Mortgage Interest Rates of the Group 3
Mortgage Loans (based on the Stated Principal Balances of the Group 3 Mortgage
Loans on the due date in the month preceding the month of such Distribution
Date).
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-4-A-1
[FORM OF FACE OF CLASS 4-A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-A
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-A
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: August 1, 2004
First Distribution Date: September 20, 2004
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $207,075,000.00
Pass-Through Rate: Variable
CUSIP No.: 06051G BD 0
ISIN No.: US06051GBD07
THIS CERTIFIES THAT CEDE & CO. 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 August 27, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., a servicer
(a "Servicer"), Bank of America, N.A., a servicer (a "Servicer"), Xxxxx Fargo
Bank, N.A., as securities administrator (the "Securities Administrator"), and
Wachovia Bank, National Association, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers, 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.
Interest will accrue on the Class 4-A-1 Certificates at a per annum rate
equal to the weighted average of the Net Mortgage Interest Rates of the Group 4
Mortgage Loans (based on the Stated Principal Balances of the Group 4 Mortgage
Loans on the due date in the month preceding the month of such Distribution
Date).
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-5-A-1
[FORM OF FACE OF CLASS 5-A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-A
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-A
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: August 1, 2004
First Distribution Date: September 20, 2004
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $23,378,000.00
Pass-Through Rate: Variable
CUSIP No.: 06051G BE 8
ISIN No.: US06051GBE89
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 August 27, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., a servicer
(a "Servicer"), Bank of America, N.A., a servicer (a "Servicer"), Xxxxx Fargo
Bank, N.A., as securities administrator (the "Securities Administrator"), and
Wachovia Bank, National Association, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers, 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.
Interest will accrue on the Class 5-A-1 Certificates at a per annum rate
equal to the weighted average of the Net Mortgage Interest Rates of the Group 5
Mortgage Loans (based on the Stated Principal Balances of the Group 5 Mortgage
Loans on the due date in the month preceding the month of such Distribution
Date).
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-1
[FORM OF FACE OF CLASS B-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-A
Class B-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
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, SERVICERS, 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-A
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: August 1, 2004
First Distribution Date: September 20, 2004
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $9,188,000.00
Pass-Through Rate: Variable
CUSIP No.: 06051G BF 5
ISIN No.: US06051GBF54
THIS CERTIFIES THAT CEDE & CO. 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 August 27, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., a servicer
(a "Servicer"), Bank of America, N.A., a servicer (a "Servicer"), Xxxxx Fargo
Bank, N.A., as securities administrator (the "Securities Administrator"), and
Wachovia Bank, National Association, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
For each Distribution Date, interest will accrue at a per annum rate equal
to the weighted average (based on the Group Subordinate Amount for each Loan
Group) of the Net Mortgage Interest Rates of the Group 1 Mortgage Loans, Group 2
Mortgage Loans, Group 3 Mortgage Loans, Group 4 Mortgage Loans and Group 5
Mortgage Loans (in each case based on the Stated Principal Balances of the
Mortgage Loans of such Loan Group on the Due Date in the month preceding the
month of such Distribution Date).
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-2
[FORM OF FACE OF CLASS B-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-A
Class B-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AND CLASS B-1 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
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, SERVICERS, 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-A
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: August 1, 2004
First Distribution Date: September 20, 2004
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $3,062,000.00
Pass-Through Rate: Variable
CUSIP No.: 06051G BG 3
ISIN No.: US06051GBG38
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 August 27, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., a servicer
(a "Servicer"), Bank of America, N.A., a servicer (a "Servicer"), Xxxxx Fargo
Bank, N.A., as securities administrator (the "Securities Administrator"), and
Wachovia Bank, National Association, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
For each Distribution Date, interest will accrue at a per annum rate equal
to the weighted average (based on the Group Subordinate Amount for each Loan
Group) of the Net Mortgage Interest Rates of the Group 1 Mortgage Loans, Group 2
Mortgage Loans, Group 3 Mortgage Loans, Group 4 Mortgage Loans and Group 5
Mortgage Loans (in each case based on the Stated Principal Balances of the
Mortgage Loans of such Loan Group on the Due Date in the month preceding the
month of such Distribution Date).
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-3
[FORM OF FACE OF CLASS B-3 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-A
Class B-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES,
CLASS B-1 AND CLASS B-2 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT.
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, SERVICERS, 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-A
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: August 1, 2004
First Distribution Date: September 20, 2004
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,532,000.00
Pass-Through Rate: Variable
CUSIP No.: 06051G BH 1
ISIN No.: US06051GBH11
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 August 27, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., a servicer
(a "Servicer"), Bank of America, N.A., a servicer (a "Servicer"), Xxxxx Fargo
Bank, N.A., as securities administrator (the "Securities Administrator"), and
Wachovia Bank, National Association, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
For each Distribution Date, interest will accrue at a per annum rate equal
to the weighted average (based on the Group Subordinate Amount for each Loan
Group) of the Net Mortgage Interest Rates of the Group 1 Mortgage Loans, Group 2
Mortgage Loans, Group 3 Mortgage Loans, Group 4 Mortgage Loans and Group 5
Mortgage Loans (in each case based on the Stated Principal Balances of the
Mortgage Loans of such Loan Group on the Due Date in the month preceding the
month of such Distribution Date).
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-4
[FORM OF FACE OF CLASS B-4 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-A
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,
CLASS B-1, CLASS B-2 AND CLASS B-3 CERTIFICATES AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE SECURITIES ADMINISTRATOR EITHER (I) A REPRESENTATION LETTER, IN FORM AND
SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR, STATING THAT (A) IT IS
NOT, AND IS NOT ACTING ON BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY
SUCH PLAN TO EFFECT SUCH PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE
SOURCE OF FUNDS USED TO PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY
GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), 60 FED. REG. 35925 (JULY 12,
1995)), THERE IS NO 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, SERVICERS, 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-A
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: August 1, 2004
First Distribution Date: September 20, 2004
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,531,000.00
Pass-Through Rate: Variable
CUSIP No.: 06051G BJ 7
ISIN No.: US06051GBJ76
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 August 27, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., a servicer
(a "Servicer"), Bank of America, N.A., a servicer (a "Servicer"), Xxxxx Fargo
Bank, N.A., as securities administrator (the "Securities Administrator"), and
Wachovia Bank, National Association, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
For each Distribution Date, interest will accrue at a per annum rate equal
to the weighted average (based on the Group Subordinate Amount for each Loan
Group) of the Net Mortgage Interest Rates of the Group 1 Mortgage Loans, Group 2
Mortgage Loans, Group 3 Mortgage Loans, Group 4 Mortgage Loans and Group 5
Mortgage Loans (in each case based on the Stated Principal Balances of the
Mortgage Loans of such Loan Group on the Due Date in the month preceding the
month of such Distribution Date).
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Securities
Administrator or the Depositor; provided that the foregoing requirements under
clauses (i) and (ii) shall not apply to a transfer of a Private Certificate
between or among the Depositor, the Seller, their affiliates or both. The Holder
of a Private Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Securities Administrator and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-5
[FORM OF FACE OF CLASS B-5 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-A
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,
CLASS B-1, CLASS B-2, CLASS B-3 AND CLASS B-4 CERTIFICATES AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE SECURITIES ADMINISTRATOR EITHER (I) A REPRESENTATION LETTER, IN FORM AND
SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR, STATING THAT (A) IT IS
NOT, AND IS NOT ACTING ON BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY
SUCH PLAN TO EFFECT SUCH PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE
SOURCE OF FUNDS USED TO PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY
GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED
TRANSACTION CLASS 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, SERVICERS, 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-A
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: August 1, 2004
First Distribution Date: September 20, 2004
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $918,000.00
Pass-Through Rate: Variable
CUSIP No.: 06051G BK 4
ISIN No.: US06051GBK40
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 August 27, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., a servicer
(a "Servicer"), Bank of America, N.A., a servicer (a "Servicer"), Xxxxx Fargo
Bank, N.A., as securities administrator (the "Securities Administrator"), and
Wachovia Bank, National Association, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
For each Distribution Date, interest will accrue at a per annum rate equal
to the weighted average (based on the Group Subordinate Amount for each Loan
Group) of the Net Mortgage Interest Rates of the Group 1 Mortgage Loans, Group 2
Mortgage Loans, Group 3 Mortgage Loans, Group 4 Mortgage Loans and Group 5
Mortgage Loans (in each case based on the Stated Principal Balances of the
Mortgage Loans of such Loan Group on the Due Date in the month preceding the
month of such Distribution Date).
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Securities
Administrator or the Depositor; provided that the foregoing requirements under
clauses (i) and (ii) shall not apply to a transfer of a Private Certificate
between or among the Depositor, the Seller, their affiliates or both. The Holder
of a Private Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Securities Administrator and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-6
[FORM OF FACE OF CLASS B-6 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2004-A
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,
CLASS B-1, CLASS B-2, CLASS B-3, CLASS B-4 AND CLASS B-5 CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE SECURITIES ADMINISTRATOR EITHER (I) A REPRESENTATION LETTER, IN FORM AND
SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR, STATING THAT (A) IT IS
NOT, AND IS NOT ACTING ON BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY
SUCH PLAN TO EFFECT SUCH PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE
SOURCE OF FUNDS USED TO PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY
GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), 60 FED. REG. 35925 (JULY 12,
1995)), THERE IS NO 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, SERVICERS, 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-A
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: August 1, 2004
First Distribution Date: September 20, 2004
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $613,194.00
Pass-Through Rate: Variable
CUSIP No.: 06051G BL 2
ISIN No.: US06051GBL23
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 August 27, 2004 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., a servicer
(a "Servicer"), Bank of America, N.A., a servicer (a "Servicer"), Xxxxx Fargo
Bank, N.A., as securities administrator (the "Securities Administrator"), and
Wachovia Bank, National Association, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicers, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
For each Distribution Date, interest will accrue at a per annum rate equal
to the weighted average (based on the Group Subordinate Amount for each Loan
Group) of the Net Mortgage Interest Rates of the Group 1 Mortgage Loans, Group 2
Mortgage Loans, Group 3 Mortgage Loans, Group 4 Mortgage Loans and Group 5
Mortgage Loans (in each case based on the Stated Principal Balances of the
Mortgage Loans of such Loan Group on the Due Date in the month preceding the
month of such Distribution Date).
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Securities
Administrator or the Depositor; provided that the foregoing requirements under
clauses (i) and (ii) shall not apply to a transfer of a Private Certificate
between or among the Depositor, the Seller, their affiliates or both. The Holder
of a Private Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Securities Administrator and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT C
[FORM OF REVERSE OF ALL CERTIFICATES]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as Banc of America Funding Corporation Mortgage Pass-Through
Certificates, of the Series specified on the face hereof (collectively, the
"Certificates"), and representing a beneficial ownership interest in the Trust
created by the Pooling and Servicing Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the Pooling
and Servicing Agreement or, except as expressly provided in the Pooling and
Servicing Agreement, subject to any liability under the Pooling and Servicing
Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to the Pooling and Servicing Agreement for the
interests, rights and limitations of rights, benefits, obligations and duties
evidenced thereby, and the rights, duties and immunities of the Securities
Administrator.
Pursuant to the terms of the Pooling and Servicing Agreement, a
distribution will be made on the 20th day of each calendar month (or, if such
day is not a Business Day, the next Business Day) (each, a "Distribution Date"),
commencing on the first Distribution Date specified on the face hereof, to the
Person in whose name this Certificate is registered at the close of business on
the applicable Record Date in an amount required pursuant to the Pooling and
Servicing Agreement. The Record Date applicable to each Distribution Date is the
last Business Day of the month next preceding the month of such Distribution
Date.
On each Distribution Date, the Securities Administrator shall distribute
out of the Certificate Account to each Certificateholder of record on the
related Record Date (other than respecting the final distribution) (a) by check
mailed to such Certificateholder entitled to receive a distribution on such
Distribution Date at the address appearing in the Certificate Register, or (b)
upon written request by the Holder of a Certificate (other than Residual
Certificates), 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 Servicers, 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 Servicers, the Certificate Registrar, the Securities
Administrator and the Trustee and any agent of the Depositor, the Servicers, the
Certificate Registrar, the Securities Administrator or the Trustee may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Servicers, the Certificate Registrar,
the Trustee, the Securities Administrator or any such agent shall be affected by
any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
is less than 1% of the aggregate Cut-Off Date Principal Balance, Xxxxx Fargo
Bank, N.A., as a Servicer, will have the option to repurchase, in whole, from
the Trust all remaining Mortgage Loans and all property acquired in respect of
such Mortgage Loans at a purchase price determined as provided in the Pooling
and Servicing Agreement. In the event that no such optional repurchase occurs,
the obligations and responsibilities created by the Pooling and Servicing
Agreement will terminate upon the later of the maturity or other liquidation (or
any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust or the disposition of all property in respect thereof and the distribution
to Certificateholders of all amounts required to be distributed pursuant to the
Pooling and Servicing Agreement. In no event shall the Trust created by the
Pooling and Servicing Agreement continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
thereof.
Any term used herein that is defined in the Pooling and Servicing
Agreement shall have the meaning assigned in the Pooling and Servicing
Agreement, and nothing herein shall be deemed inconsistent with that meaning.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, 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.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
--------------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________ for the
account of ___________________, account number _________________________, or, if
mailed by check, to Applicable statements should be mailed to
_______________________
This information is provided by __________, the assignee named above, or ,
as its agent.
EXHIBIT D-1
LOAN GROUP 1 MORTGAGE LOAN SCHEDULE
(INTENTIONALLY OMITTED)
EXHIBIT D-2
LOAN GROUP 2 MORTGAGE LOAN SCHEDULE
(INTENTIONALLY OMITTED)
EXHIBIT D-3
LOAN GROUP 3 MORTGAGE LOAN SCHEDULE
(INTENTIONALLY OMITTED)
EXHIBIT D-4
LOAN GROUP 4 MORTGAGE LOAN SCHEDULE
(INTENTIONALLY OMITTED)
EXHIBIT D-5
LOAN GROUP 5 MORTGAGE LOAN SCHEDULE
(INTENTIONALLY OMITTED)
EXHIBIT E
REQUEST FOR RELEASE OF DOCUMENTS
[date]
To: Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services - BAFC 2004-A
Re: The Pooling and Servicing Agreement dated August 27, 2004 among Banc
of America Funding Corporation, as Depositor, Xxxxx Fargo Bank,
N.A., a Servicer, Bank of America, N.A., a Servicer, Xxxxx Fargo
Bank, N.A., as Securities Administrator, and Wachovia Bank, National
Association, as Trustee
In connection with the administration of the Mortgage Loans held by you,
as Custodian, pursuant to the above-captioned Pooling and Servicing Agreement,
we request the release, and hereby acknowledge receipt, of the Mortgage File for
the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
--------------------
Mortgagor Name, Address & Zip Code:
----------------------------------
Reason for Requesting Documents (check one)
-------------------------------
____ 1. Mortgage Paid in Full
____ 2. Foreclosure
____ 3. Substitution
____ 4. Other Liquidation
____ 5. Nonliquidation Reason: ___________________
By:
--------------------------------------
(authorized signer of Banc of
America Funding Corporation)
Issuer:
----------------------------------
Address:
---------------------------------
Date:
------------------------------------
Custodian
---------
Xxxxx Fargo Bank, N.A.
Please acknowledge the execution of the above request by your signature and date
below:
---------------------------------- ---------------
Signature Date
Documents returned to Custodian:
----------------------------------- ----------------
Custodian Date
EXHIBIT F
FORM OF CERTIFICATION OF ESTABLISHMENT OF ACCOUNT
[Date]
[_______________] hereby certifies that it has established a [__________]
Account pursuant to Section [________] of the Pooling and Servicing Agreement,
dated August 27, 2004, among Banc of America Funding Corporation, as Depositor,
Xxxxx Fargo Bank, N.A., a Servicer, Bank of America, N.A., a Servicer, Xxxxx
Fargo Bank, N.A., as Securities Administrator, and Wachovia Bank, National
Association, as Trustee.
[________________],
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT G-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services - BAFC 2004-A
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2004-A, Class ___, having an initial aggregate
Certificate Balance as of August 27, 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 August 27, 2004, among Banc of America Funding Corporation,
as Depositor, Xxxxx Fargo Bank, N.A., a Servicer, Bank of America, N.A., a
Servicer, Xxxxx Fargo Bank, N.A. as Securities Administrator, and Wachovia Bank,
National Association, as Trustee. All capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Pooling
and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Securities Administrator, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any
offer to buy or accept a transfer, pledge or other disposition of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security with
any person in any manner, (d) made any general solicitation with respect
to any Transferred Certificate, any interest in a Transferred Certificate
or any other similar security by means of general advertising or in any
other manner, or (e) taken any other action with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security, which (in the case of any of the acts described in
clauses (a) through (e) hereof) would constitute a distribution of the
Transferred Certificates under the Securities Act of 1933, as amended (the
"1933 Act"), would render the disposition of the Transferred Certificates
a violation of Section 5 of the 1933 Act or any state securities laws, or
would require registration or qualification of the Transferred
Certificates pursuant to the 1933 Act or any state securities laws.
Very truly yours,
--------------------------------------------
(Transferor)
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
EXHIBIT G-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services - BAFC 2004-A
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2004-A, Class ___, having an initial aggregate
Certificate Balance as of August 27, 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 August 27, 2004, among Banc of America Funding
Corporation, as Depositor, Xxxxx Fargo Bank, N.A., a Servicer, Bank of America,
N.A., a Servicer, Xxxxx Fargo Bank, N.A., as Securities Administrator, and
Wachovia Bank, National Association, as Trustee. All capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferor hereby certifies, represents
and warrants to you, as Securities Administrator, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "1933 Act"), and has
completed one of the forms of certification to that effect attached hereto
as Annex 1 and Annex 2. The Transferee is aware that the sale to it is
being made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of another
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a Qualified Institutional Buyer that purchases
for its own account or for the account of another Qualified Institutional
Buyer to whom notice is given that the resale, pledge or transfer is being
made in reliance on Rule 144A, or (b) pursuant to another exemption from
registration under the 1933 Act.
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement and the Trust created pursuant
thereto, (e) any credit enhancement mechanism associated with the
Transferred Certificate, and (f) all related matters, that it has
requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgment below.
Very truly yours,
--------------------------------------------
(Transferor)
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
--------------------------------------------
(Nominee)
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
ANNEX 1 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [__________________] (the
"Transferor") Xxxxx Fargo Bank, 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
Transferred Certificates only for the
Yes No 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
Transferred Certificates only for the
Yes No Transferee's own account?
6. If the answer to the foregoing question is "no," then in each
case where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
--------------------------------------------
Print Name of Transferee or Adviser
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
IF AN ADVISER:
--------------------------------------------
Print Name of Transferee
By:
-----------------------------------------
Date:
---------------------------------------
EXHIBIT G-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services - BAFC 2004-A
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2004-A, Class ___, having an initial aggregate
Certificate Principal Balance as of August 27, 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 August 27, among Banc of America
Funding Corporation, as Depositor, Xxxxx Fargo Bank, N.A., a Servicer, Bank of
America, N.A., a Servicer, Xxxxx Fargo Bank, N.A., as Securities Administrator,
and Wachovia Bank, National Association, as Trustee. All capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferor hereby certifies, represents
and warrants to you, as Securities Administrator, that:
1. Transferee is acquiring the Transferred Certificates for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "1933 Act"), or
any applicable state securities laws.
2. Transferee understands that (a) the Transferred Certificates have not
been and will not be registered under the 1933 Act or registered or qualified
under any applicable state securities laws, (b) neither the Depositor nor the
Securities Administrator is obligated so to register or qualify the Transferred
Certificates and (c) neither the Transferred Certificates nor any security
issued in exchange therefor or in lieu thereof may be resold or transferred
unless such resale or transfer is exempt from the registration requirements of
the 1933 Act and any applicable state securities laws or is made in accordance
with the 1933 Act and laws, in which case (i) unless the transfer is made in
reliance on Rule 144A under the 1933 Act, the Securities Administrator or the
Depositor may require a written Opinion of Counsel (which may be in-house
counsel) acceptable to and in form and substance reasonably satisfactory to the
Securities Administrator and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act and such laws or is being made pursuant to the 1933
Act and such laws, which Opinion of Counsel shall not be an expense of the
Securities Administrator or the Depositor and (ii) the Securities Administrator
shall require a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached to the Pooling and Servicing
Agreement as Exhibit G-1 and a certificate from such Certificateholder's
prospective transferee substantially in the form attached to the Pooling and
Servicing Agreement either as Exhibit G-2A or as Exhibit G-2B, which
certificates shall not be an expense of the Securities Administrator or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both.
3. The Transferee understands that it may not sell or otherwise transfer
the Transferred Certificates, any security issued in exchange therefor or in
lieu thereof or any interest in the foregoing except in compliance with the
provisions of Section 6.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A
TRANSACTION EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT
AND IN ACCORDANCE WITH THE PROVISIONS OF THE POOLING AND SERVICING
AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON
BEHALF OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN
INDIVIDUAL RETIREMENT ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR ANY FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A
"PLAN"), MAY RESULT IN "PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF
ERISA, THE CODE OR SIMILAR LAW. TRANSFER OF THIS CERTIFICATE WILL NOT BE
MADE UNLESS THE TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER
(I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE SATISFACTORY TO THE
SECURITIES ADMINISTRATOR, STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON
BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT
SUCH PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF
FUNDS USED TO PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL
ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), 60 FED. REG. 35925 (JULY
12, 1995)), THERE IS NO BENEFIT PLAN WITH RESPECT TO WHICH THE AMOUNT OF
SUCH GENERAL ACCOUNT'S RESERVES AND LIABILITIES FOR THE CONTRACT(S) HELD
BY OR ON BEHALF OF SUCH BENEFIT PLAN AND ALL OTHER BENEFIT PLANS
MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN
SECTION V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS
10% OF THE TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT
(AS SUCH AMOUNTS ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60) AT THE
DATE OF ACQUISITION AND ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL
ACCOUNT ARE PLANS TO WHICH PTE 95-60 APPLIES, OR (II) AN OPINION OF
COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY TO THE SECURITIES
ADMINISTRATOR AND SERVICER, 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, SERVICER OR THE SECURITIES ADMINISTRATOR TO ANY OBLIGATION IN
ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT. EACH
PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE
DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION
LETTER REFERRED TO IN THE PRECEDING SENTENCE UNLESS SUCH PERSON SHALL HAVE
PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL REFERRED TO
IN THE PRECEDING SENTENCE TO THE SECURITIES ADMINISTRATOR. THE POOLING AND
SERVICING AGREEMENT PROVIDES THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN
VIOLATION OF THESE TRANSFER RESTRICTIONS WILL BE NULL AND VOID AND WILL
VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security with any person in any manner, (d) made any general solicitation by
means of general advertising or in any other manner, or (e) taken any other
action, that (in the case of any of the acts described in clauses (a) through
(e) above) would constitute a distribution of the Transferred Certificates under
the 1933 Act, would render the disposition of the Transferred Certificates a
violation of Section 5 of the 1933 Act or any state securities law or would
require registration or qualification of the Transferred Certificates pursuant
thereto. The Transferee will not act, nor has it authorized nor will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to the Transferred Certificates, any interest in the Transferred
Certificates or any other similar security.
5. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Transferred Certificates and distributions thereon, (c)
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust created pursuant thereto, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501 (a) under the 1933 Act or an entity
in which all the equity owners come within such paragraphs and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Transferred
Certificates; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
--------------------------------------------
(Transferee)
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Date:
---------------------------------------
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
--------------------------------------------
(Nominee)
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
EXHIBIT H
FORM OF TRANSFEREE REPRESENTATION LETTER
FOR BENEFIT PLAN-RESTRICTED CERTIFICATES
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services - BAFC 2004-A
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2004-A, Class ___, having an initial aggregate
Certificate Principal Balance as of August 27, 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 August 27, 2004 among Banc of
America Funding Corporation, as Depositor, Xxxxx Fargo Bank, N.A., a Servicer,
Bank of America, N.A., a Servicer, Xxxxx Fargo Bank, N.A., as Securities
Administrator, and Wachovia Bank, National Association, as Trustee. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to you, as
Securities Administrator, either that:
(a) it is not, and is not acting on behalf of, an employee benefit plan or
arrangement, including an individual retirement account, subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), the Internal
Revenue Code of 1986, as amended (the "Code"), or any federal, state or local
law ("Similar Law") which is similar to ERISA or the Code (collectively, a
"Plan"), and it is not using the assets of any such Plan to effect the purchase
of the Transferred Certificates; or
(b) except in the case of the Class P Certificates, it is an insurance
company and the source of funds used to purchase the Transferred Certificates is
an "insurance company general account" (as defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTE 95-60"), 60 Fed. Reg. 35925 (July 12,
1995)), there is no Plan with respect to which the amount of such general
account's reserves and liabilities for the contract(s) held by or on behalf of
such Plan and all other Plans maintained by the same employer (or affiliate
thereof as defined in Section V(a)(1) of PTE 95-60) or by the same employee
organization exceeds 10% of the total of all reserves and liabilities of such
general account (as such amounts are determined under Section I(a) of PTE 95-60)
at the date of 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-A
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 August 27, 2004, (the "Agreement"), relating to the
above-referenced Series, by and among Banc of America Funding Corporation, as
depositor (the "Depositor"), Xxxxx Fargo Bank, N.A., a Servicer, Bank of
America, N.A., a Servicer, Xxxxx Fargo Bank, N.A., as Securities Administrator,
and Wachovia Bank, National Association, as Trustee. Capitalized terms used but
not defined herein shall have the meanings ascribed to such terms in the
Agreement. The Transferee has authorized the undersigned to make this affidavit
on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the date
of the transfer, a Permitted Transferee. The Transferee is acquiring the
Residual Certificate either (i) for its own account or (ii) as nominee, trustee
or agent for another Person who is a Permitted Transferee and has attached
hereto an affidavit from such Person in substantially the same form as this
affidavit. The Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax will
be imposed on Transfers of the Residual Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will be
imposed on a "pass-through entity" holding the Certificate if at any time during
the taxable year of the pass-through entity a Person that is not a Permitted
Transferee is the record Holder of an interest in such entity. The Transferee
understands that, other than in the case of an "electing large partnership"
under Section 775 of the Code, such tax will not be imposed for any period with
respect to which the record Holder furnishes to the pass-through entity an
affidavit that such record Holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 6.02 of the
Agreement and understands the legal consequences of the acquisition of the
Residual Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 6.02 of the Agreement and the restrictions noted on
the face of the Certificate. The Transferee understands and agrees that any
breach of any of the representations included herein shall render the transfer
to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a transfer affidavit in the form of
this Affidavit from any Person to whom the Transferee attempts to transfer the
Residual Certificate, and in connection with any transfer by a Person for whom
the Transferee is acting as nominee, trustee or agent, and the Transferee will
not transfer the Residual Certificate or cause the Residual Certificate to be
transferred to any Person that the Transferee knows is not a Permitted
Transferee.
7. The Transferee historically has paid its debts as they have become due.
8. The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the Residual
Certificate.
9. The taxpayer identification number of the Transferee's nominee is
___________.
10. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
11. The Transferee is aware that the Residual Certificate may be a
"noneconomic residual interest" within the meaning of Treasury Regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
12. The Transferee will not cause income from the Residual Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other
person.
13. If the Transferee is purchasing the Residual Certificate in a transfer
intended to meet the safe harbor provisions of Treasury Regulations Sections
1.860E-1(c), the Transferee has executed and attached Attachment A hereto.
14. The Transferee is not an employee benefit plan or arrangement,
including an individual retirement account, subject to ERISA, the Code or any
federal, state or local law which is similar to ERISA or the Code, and the
Transferee is not acting on behalf of such a plan or arrangement.
* * *
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer this _____ day of ________________, ____.
--------------------------------------------
Print Name of Transferee
By:
-----------------------------------------
Name:
Title:
Personally appeared before me the above-named ___________________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the _______________________ of the Transferee, and
acknowledged that he executed the same as his free act and deed and the free act
and deed of the Transferee.
Subscribed and sworn before me this _____ day of _______________________,
____
NOTARY PUBLIC
--------------------------------------------
My Commission expires the ____ day of
______________, ____
ATTACHMENT A
to
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4) OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, AND FOR NON-ERISA INVESTORS
Check the appropriate box:
[_] The consideration paid to the Transferee to acquire the Residual
Certificate equals or exceeds the excess of (a) the present value of the
anticipated tax liabilities over (b) the present value of the anticipated
savings associated with holding such Residual Certificate, in each case
calculated in accordance with U.S. Treasury Regulations Sections
1.860E-1(c)(7) and (8), computing present values using a discount rate
equal to the short-term Federal rate prescribed by Section 1274(d) of the
Code and the compounding period used by the Transferee.
OR
--
[_] The transfer of the Residual Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly:
(i) the Transferee is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income
from Residual Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the Transferee's
two fiscal years preceding the year of the transfer, the Transferee
had gross assets for financial reporting purposes (excluding any
obligation of a person related to the Transferee within the meaning
of U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess
of $100 million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Residual Certificate only to
another "eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that
satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii) and
(iii) and Section 1.860E-1(c)(5) of the U.S. Treasury Regulations;
(iv) the Transferee has determined the consideration paid to it to
acquire the Residual Certificate based on reasonable market
assumptions (including, but not limited to, borrowing and investment
rates, prepayment and loss assumptions, expense and reinvestment
assumptions, tax rates and other factors specific to the Transferee)
that it has determined in good faith; and
(v) in the event of any transfer of the Residual Certificate by the
Transferee, the Transferee will require its transferee to complete a
representation in the form of this Attachment A as a condition of
such transferee's purchase of the Residual Certificate.
EXHIBIT J
CONTENTS OF SERVICING FILE
1. Copies of Mortgage Loan Documents.
2. Residential loan application.
3. Mortgage Loan closing statement.
4. Verification of employment and income, if required.
5. Verification of acceptable evidence of source and amount of downpayment.
6. Credit report on Mortgagor, in a form acceptable to either FNMA or FHLMC.
7. Residential appraisal report.
8. Photograph of the Mortgaged Property.
9. Survey of the Mortgaged Property, unless a survey is not required by the
title insurer.
10. Copy of each instrument necessary to complete identification of any
exception set forth in the exception schedule in the title policy, i.e.,
map or plat, restrictions, easements, home owner association declarations,
etc.
11. Copies of all required disclosure statements.
12. If applicable, termite report, structural engineer's report, water
potability and septic certification.
13. Sales Contract, if applicable.
14. The Primary Insurance Policy or certificate of insurance or an electronic
notation of the existence of such policy, where required pursuant to the
Agreement.
15. Evidence of electronic notation of the hazard insurance policy, and if
required by law, evidence of the flood insurance policy.
EXHIBIT K
FORM OF SPECIAL SERVICING AGREEMENT
-----------------------------------
This Special Servicing Agreement (the "Agreement") is made and entered
into as of ___________________, between [Xxxxx Fargo Bank, N.A.][Bank of
America, N.A.] (a "Servicer") and ___________________ (the "Loss Mitigation
Advisor").
PRELIMINARY STATEMENT
_________________ (the "Purchaser") is the holder of the entire interest
in Banc of America Funding Corporation; Mortgage Pass-Through Certificates,
Series ______, Class ____ (the "Class B Certificates"). The Class B Certificates
were issued pursuant to a Pooling and Servicing Agreement dated August 27, 2004,
among Banc of America Funding Corporation, as depositor (the "Depositor"), Xxxxx
Fargo Bank, N.A., a Servicer, Bank of America, N.A., a Servicer, Xxxxx Fargo
Bank, N.A., as Securities Administrator, and Wachovia Bank, National
Association, as Trustee.
The Purchaser has requested Servicer to engage the Loss Mitigation
Advisor, at the Purchaser's expense, to assist Servicer with respect to default
management and reporting situations for the benefit of the Purchaser.
In consideration of the mutual agreements herein contained, the receipt
and sufficiency of which are hereby acknowledged, Servicer hereby engages the
Loss Mitigation Advisor to provide advice in connection with default management
and reporting situations with respect to defaulted loans, including providing to
Servicer recommendations with respect to foreclosures, the acceptance of
so-called short payoffs, deeds in lieu of or in aid of foreclosure and
deficiency notes, as well as with respect to the sale of REO properties. The
Loss Mitigation Advisor hereby accepts such engagement, and acknowledges that
its fees will be paid by the Purchaser and not Servicer, and that it will not
look to Servicer for financial remuneration. It is the intent of the parties to
this Agreement that the services of the Loss Mitigation Advisor are provided
without fee to Servicer for the benefit of the Purchaser for the life of the
Class B Certificates.
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms.
-------------
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a day
on which banking institutions in the State of New York are required or
authorized by law or executive order to be closed.
Commencement of Foreclosure: The first official action required under
local law in order to commence foreclosure proceedings or to schedule a
trustee's sale under a deed of trust, including (i) in the case of a mortgage,
any filing or service of process necessary to commence an action to foreclose,
or (ii) in the case of a deed of trust, the posting, publishing, filing or
delivery of a notice of sale.
Delay of Foreclosure: The postponement for more than three Business Days
of the scheduled sale of Mortgaged Property to obtain satisfaction of a Mortgage
Loan.
Loss Mitigation Advisor: ______________.
Purchaser: _______________________, or the holder of record of the Class B
Certificates.
Short Payoff: Liquidation of a Mortgage Loan at less than the full amount
of the outstanding balance of the Mortgage Loan plus advances and costs through
a negotiated settlement with the borrower, which may include a deed-in-lieu of
foreclosure or sale of the property or of the promissory note secured by the
collateral property to a third party, in either case with or without a
contribution toward any resulting deficiency by the borrower.
Section 1.02. Definitions Incorporated by Reference.
-------------------------------------
All capitalized terms not otherwise defined in this Agreement shall have
the meanings assigned in the Pooling and Servicing Agreements.
ARTICLE II
SPECIAL SERVICING PROCEDURES
Section 2.01. Reports and Notices.
-------------------
(a) In connection with the performance of its duties under the Pooling and
Servicing Agreement relating to the realization upon defaulted Mortgage Loans,
Servicer shall use reasonable efforts to provide to the Loss Mitigation Advisor
with the following notices and reports. All such notices and reports may be sent
to the Loss Mitigation Advisor by telecopier, electronic mail, express mail or
regular mail.
(i) Servicer shall within five Business Days after each Distribution
Date either: (A) provide to the Loss Mitigation Advisor a written or
electronic report, using the same methodology and calculations as in its
standard servicing reports, indicating for the trust fund formed by the
Pooling and Servicing Agreement, the number of Mortgage Loans that are (1)
sixty days delinquent, (2) ninety days or more delinquent, (3) in
foreclosure or (4) real estate owned (REO), and indicating for each such
Mortgage Loan the loan number, whether the loan is in bankruptcy or paying
under the terms of a repayment plan, the reason for default, and
outstanding principal balance; or (B) provide the information detailed in
(A) to a data service provider of the Loss Mitigation Advisor's choice in
an electronic format acceptable to that data service provider. Provision
of the information to a service provider other than that specified by the
Loss Mitigation Advisor is acceptable.
(ii) Prior to a Delay of Foreclosure in connection with any Mortgage
Loan, Servicer shall provide the Loss Mitigation Advisor with a notice of
such proposed and imminent delay, stating the loan number, the aggregate
amount owing under the Mortgage Loan, and the reason and justification for
delaying foreclosure action. All notices and supporting documentation
pursuant to this subsection may be provided via telecopier, express mail
or electronic mail.
(iii) Prior to accepting any Short Payoff in connection with any
Mortgage Loan, Servicer shall provide the Loss Mitigation Advisor with a
notice of such proposed and imminent Short Payoff, stating the loan
number, the aggregate amount owing under the Mortgage Loan, and the
justification for accepting the proposed Short Payoff. Such notice may be
sent by telecopier, express mail, electronic mail or regular mail.
(iv) Within five (5) business days of each Distribution Date,
Servicer shall provide the Loss Mitigation Advisor with a report listing
each loan that has resulted in a realized loss that has been reported to
the trustee. Such report shall specify the loan number, the outstanding
principal balance of the loan upon its liquidation, the realized loss, and
the following components of realized loss: foreclosure costs, advances,
mortgage insurance proceeds, marketing and property rehabilitation costs,
and other costs. Such report may be provided by telecopier, express mail,
regular mail or electronic mail. The Loss Mitigation Advisor shall have at
least ten (10) business days in which to respond with reasonable questions
or requests for additional information regarding the amounts reported as
realized losses, and Servicer shall within five (5) business days of
receipt of the Loss Mitigation Advisor's questions or additional
information requests provide responses to such questions and requests.
(v) Within five (5) business days of receipt by Servicer of an offer
to acquire an REO property at an amount that is more than 15% below the
most recent market valuation of that property obtained by Servicer (or if
no such valuation has been obtained, the appraisal used in connection with
the originating of the related Mortgage Loan), Servicer shall notify the
Loss Mitigation Advisor of such offer and shall provide a justification
for accepting such offer, if that is Servicer's recommendation.
(vi) Within five (5) business days of receipt by Servicer that a
claim filed for mortgage insurance, or any part thereof, has been rejected
by the mortgage insurance provider, Servicer shall provide a copy of the
rejected claim with explanations for the item or items rejected to the
Loss Mitigation Advisor.
(vii) Within five (5) business days of providing the trustee with
any notice regarding a mortgage loan substitution, loan modification, or
loan repurchase, Servicer shall provide the Loss Mitigation Advisor with a
copy of the notice.
(b) If requested by the Loss Mitigation Advisor, Servicer shall make
its servicing personnel available during its normal business hours to
respond to reasonable inquiries, in writing by facsimile transmission,
express mail or electronic mail, by the Loss Mitigation Advisor in
connection with any Mortgage Loan identified in a report under subsection
2.01 (a)(i), (a)(ii), (a)(iii) or (a)(iv) which has been given to the Loss
Mitigation Advisor; provided that Servicer shall only be required to
provide information that is readily accessible to their servicing
personnel.
(c) In addition to the foregoing, Servicer shall provide to the Loss
Mitigation Advisor such information as the Loss Mitigation Advisor may
reasonably request concerning each Mortgage Loan that is at least sixty
days delinquent and each Mortgage Loan which has become real estate owned,
provided that Servicer shall only be required to provide information that
is readily accessible to its servicing personnel.
(d) With respect to all Mortgage Loans which are serviced at any
time by Servicer through a subservicer, Servicer shall be entitled to rely
for all purposes hereunder, including for purposes of fulfilling its
reporting obligations under this Section 2.01, on the accuracy and
completeness of any information provided to it by the applicable
subservicer.
Section 2.02. Loss Mitigation Advisor's Recommendations With Respect to
Defaulted Loans.
---------------------------------------------------------
(a) All parties to this Agreement acknowledge that the Loss Mitigation
Advisor's advice is made in the form of recommendations, and that the Loss
Mitigation Advisor does not have the right to direct Servicer in performing its
duties under the Pooling and Servicing Agreement. Servicer may, after review and
analysis of the Loss Mitigation Advisor's recommendation, accept or reject it,
in Servicer's sole discretion, subject to the standards of Servicer to protect
the interest of the Certificateholders set forth in the Pooling and Servicing
Agreement.
(b) Within two (2) business days of receipt of a notice of a foreclosure
delay, the Loss Mitigation Advisor shall provide Servicer with a recommendation
regarding the delay, provided, however, that if additional information is
required on which to base a recommendation, the Loss Mitigation Advisor shall
notify Servicer of the additional information needed within the allotted time,
and Servicer shall promptly provide such information and the Loss Mitigation
Advisor shall then submit to Servicer its recommendation. The Loss Mitigation
Advisor may recommend that additional procedures be undertaken to further
analyze the property, the borrower, or issues related to the default or
foreclosure. Such additional procedures may include asset searches, property
valuations, legal analysis or other procedures that are warranted by the
circumstances of the property, borrower or foreclosure. The Loss Mitigation
Advisor may recommend such other actions as are warranted by the circumstances
of the property, borrower or foreclosure.
(c) Within two (2) business days of receipt of a notice of a proposed
Short Payoff, the Loss Mitigation Advisor shall provide Servicer with a
recommendation regarding the proposed Short Payoff, provided, however, that if
additional information is required on which to base a recommendation, the Loss
Mitigation Advisor shall notify Servicer of the additional information needed
within two business days, and Servicer shall promptly provide such information
and the Loss Mitigation Advisor shall then submit to Servicer its
recommendation. The Loss Mitigation Advisor's recommendation may take the form
of concurring with the proposed Short Payoff, recommending against such Short
Payoff, with a justification provided, or proposing a counteroffer.
(d) Within two (2) business days of receipt of a notice of an REO sale at
an amount that is more than 15% below the recent market valuation of that
property, the Loss Mitigation Advisor shall provide Servicer with its
recommendation. The Loss Mitigation Advisor's recommendation may take the form
of concurring with the proposed below-market sale, recommending against such
below-market sale, or proposing a counteroffer.
Section 2.03. Termination.
-----------
(a) With respect to all Mortgage Loans included in a trust fund,
Servicer's obligations under Section 2.01 and Section 2.02 shall terminate at
such time as the Certificate Principal Balances of the related Class B
Certificates have been reduced to zero.
(b) The Loss Mitigation Advisor's responsibilities under this Agreement
shall terminate upon the termination of the fee agreement between the Purchaser
or its successor and the Loss Mitigation Advisor. The Loss Mitigation Advisor
shall promptly notify Servicer of the date of termination of such fee agreement,
but in no event later than 5:00 P.M., EST, on the effective date thereof.
(c) Neither Servicer nor any of its directors, officers, employees or
agents shall be under any liability for any action taken or for refraining from
the taking of any action in good faith pursuant to this Agreement, or for errors
in judgment; provided, however, that this provision shall not protect Servicer
or any such Person against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties or by reason of reckless disregard of obligations and duties
hereunder. Servicer and the Loss Mitigation Advisor and any director, officer,
employee or agent thereof may rely in good faith on any document of any kind
prima facie properly executed and submitted by any Person respecting any matters
arising hereunder. Neither the Loss Mitigation Advisor, its directors, officers,
employees or agents shall be under any liability for any actions taken by
Servicer based upon the recommendation pursuant to this Agreement, provided they
are made in good faith.
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3.01. Amendment.
---------
This Agreement may be amended from time to time by Servicer and the Loss
Mitigation Advisor by written agreement signed by Servicer and the Loss
Mitigation Advisor.
Section 3.02. Counterparts.
------------
This Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
Section 3.03. Governing Law.
-------------
This Agreement shall be construed in accordance with the laws of the State
of New York and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
Section 3.04. Notices.
-------
All demands, notices and direction hereunder shall be in writing or by
telecopier and shall be deemed effective upon receipt to:
(a) in the case of Servicer,
[Xxxxx Fargo Bank, N.A.
1 Home Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Attn: Xxxx Xxxxx]
[Bank of America, N.A.
000 X. Xxxxx Xx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Managing Director]
or such other address as may hereafter be furnished in writing by Servicer,
(b) in the case of the Loss Mitigation Advisor,
-----------------------
(c) in the case of the Purchaser:
-----------------------
Section 3.05. Severability of Provisions.
--------------------------
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever, including regulatory, held
invalid, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
Section 3.06. Successors and Assigns.
----------------------
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders.
(b) Servicer shall notify the Loss Mitigation Advisor of the assignment of
its duties to any successor servicer within thirty (30) days prior to such
assignment, and shall provide the name, address, telephone number and telecopier
number for the successor to the Loss Mitigation Advisor.
Section 3.07. Article and Section Headings.
----------------------------
The article and section headings herein are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
Section 3.08. Confidentiality.
---------------
Servicer acknowledges the confidentiality of this Agreement and will not
release or republish its contents without the consent of the Loss Mitigation
Advisor except to the extent required by law, regulation or court order.
The Loss Mitigation Advisor agrees that all information supplied by or on
behalf of Servicer under this Agreement, is the property of Servicer. The Loss
Mitigation Advisor shall keep in strictest confidence all information relating
to this Agreement, including, without limitation, individual account information
and other information supplied by or on behalf of Servicer pursuant to Section
2.01, and that information which may be acquired in connection with or as a
result of this Agreement. During the term of this Agreement and at any time
thereafter, without the prior written consent of Servicer, the Loss Mitigation
Advisor shall not publish, communicate, divulge, disclose or use any of such
information. Upon termination or expiration of this Agreement, the Loss
Mitigation Advisor shall deliver all records, data, information, and other
documents and all copies thereof supplied by or on behalf of Servicer pursuant
to Section 2.01 to Servicer and such shall remain the property of Servicer.
Section 3.09. Independent Contractor.
----------------------
In all matters relating to this Agreement, the Loss Mitigation Advisor
shall be acting as an independent contractor. Neither the Loss Mitigation
Advisor nor any employees of the Loss Mitigation Advisor are employees or agents
of Servicer under the meaning or application of any Federal or State
Unemployment or Insurance Laws or Workmen's Compensation Laws, or otherwise. The
Loss Mitigation Advisor shall assume all liabilities or obligations imposed by
any one or more of such laws with respect to the employees of the Loss
Mitigation Advisor in the performance of this Agreement. The Loss Mitigation
Advisor shall not have any authority to assume or create any obligation, express
or implied, on behalf of Servicer, and the Loss Mitigation Advisor shall not
have the authority to represent itself as an agent, employee, or in any other
capacity of Servicer.
IN WITNESS WHEREOF, a Servicer and the Loss Mitigation Advisor have caused
their names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
[Xxxxx Fargo Bank, N.A.][Bank of America, N.A.]
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Loss Mitigation Advisor
-----------------------
By:
--------------------------------------------
Name:
Title:
PURCHASER'S ACKNOWLEDGEMENT AND AGREEMENT
Purchaser executes this agreement for the purpose of acknowledging the limited
obligations of Servicer in respect of the Loss Mitigation Advisor's
recommendation, as described in Section 2.02(a) hereof and confirming to
Servicer that (i) it shall be solely responsible for the payment of the fees of
the Loss Mitigation Advisor pursuant to the terms of an agreement between
Purchaser and Loss Mitigation Advisor dated _____________, 20__ and (ii)
Purchaser upon transfer of its interest in any of the Class B Certificates or
any part thereof will require its successor to consent to this Special Servicing
Agreement and to pay any of the fees due to the Loss Mitigation Advisor pursuant
to the agreement referenced in clause (i) above.
Purchaser
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
EXHIBIT L
LIST OF RECORDATION STATES
Florida
Maryland
EXHIBIT M-1
FORM OF INITIAL CERTIFICATION OF THE TRUSTEE
August 27, 0000
Xxxx xx Xxxxxxx Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Xxxxx Fargo Bank, N.A.
1 Home Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Re: The Pooling and Servicing Agreement, dated August 27, 2004, among
Banc of America Funding Corporation, as depositor (the "Depositor"),
Xxxxx Fargo Bank, N.A., a Servicer, Bank of America, N.A., a
Servicer, Xxxxx Fargo Bank, N.A., as Securities Administrator, and
Wachovia Bank, National Association, (the "Trustee") (BAFC 2004-A).
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as Trustee, hereby certifies that, except as specified in any list
of exceptions attached hereto as Exhibit A, it has received the original
Mortgage Note relating to each of the Mortgage Loans listed on Schedule I
attached hereto.
The Trustee has made no independent examination of any documents contained
in each Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement in connection with this Initial Certification. The Trustee
makes no representations as to: (i) the validity, legality, sufficiency,
enforceability, recordability or genuineness of any of the documents contained
in each Mortgage File or any of the Mortgage Loans listed on Schedule I attached
hereto or (ii) the collectability, insurability, effectiveness or suitability of
any such Mortgage Loan.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
EXHIBIT M-2
FORM OF INITIAL CERTIFICATION OF THE CUSTODIAN
August 27, 0000
Xxxx xx Xxxxxxx Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Xxxxx Fargo Bank, N.A.
1 Home Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Re: The Pooling and Servicing Agreement, dated August 27, 2004, among
Banc of America Funding Corporation, as depositor (the "Depositor"),
Xxxxx Fargo Bank, N.A., a Servicer, Bank of America, N.A., a
Servicer, Xxxxx Fargo Bank, N.A., as Securities Administrator, and
Wachovia Bank, National Association, as Trustee (BAFC 2004-A).
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as Custodian, hereby certifies that, except as specified in any
list of exceptions attached hereto as Exhibit A, it has received the original
Mortgage Note relating to each of the Mortgage Loans listed on the Mortgage Loan
Schedule (other than those Mortgage Loans listed on Schedule I attached hereto).
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement in connection with this Initial Certification.
The 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 preceding paragraph herein or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
XXXXX FARGO BANK, N.A.,
as Custodian
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT N
FORM OF FINAL CERTIFICATION OF THE TRUSTEE
[__________ __, ____]
Banc of America Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Xxxxx Fargo Bank, N.A.
1 Home Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Re: The Pooling and Servicing Agreement, August 27, 2004, among Banc of
America Funding Corporation, as depositor (the "Depositor"), Xxxxx
Fargo Bank, N.A., a Servicer, Bank of America, N.A., a Servicer,
Xxxxx Fargo Bank, N.A., as Securities Administrator, and Wachovia
Bank, National Association, as Trustee.
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as Custodian, on behalf of the Trustee, hereby certifies that, as
to each Mortgage Loan listed in the Mortgage Loan Schedule, except as may be
specified in any list of exceptions attached hereto, such Mortgage File contains
all of the items required to be delivered pursuant to Section 2.01(b) of the
Pooling and Servicing Agreement.
The Custodian, on behalf of the Trustee, has made no independent
examination of any documents contained in each Mortgage File beyond the review
specifically required in the Pooling and Servicing Agreement in connection with
this Final Certification. Neither the Custodian nor the Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability,
recordability or genuineness of any of the documents contained in each Mortgage
File or any of the Mortgage Loans identified in the Mortgage Loan Schedule or
(ii) the collectibility, insurability, effectiveness or suitability of any such
Mortgage Loan.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
XXXXX FARGO BANK, N.A.,
as Custodian
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
EXHIBIT O
Form of Xxxxxxxx-Xxxxx Certification
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2004-A
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-A 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;
Based on my knowledge, the servicing information required to be provided
to the Securities Administrator by a Servicer under the Pooling and
Servicing Agreement, dated August 27, 2004, among Banc of America Funding
Corporation, as depositor (the "Depositor"), Xxxxx Fargo Bank, N.A., a
Servicer, Bank of America, N.A., a Servicer, Xxxxx Fargo Bank, N.A., as
Securities Administrator, and Wachovia Bank, National Association, as
Trustee, is included in these reports;
3. I am responsible for reviewing the activities performed by each Servicer
under the Agreement and based upon the review required under the
Agreement, and except as disclosed in the report, each Servicer has
fulfilled its obligations under the Agreement;
4. The reports disclose all significant deficiencies relating to Servicer's
compliance with the minimum servicing standards based upon the report
provided by an independent public accountant after conducting a review in
compliance with the Uniform Single Attestation Program for Mortgage
Bankers or similar procedures as set forth in the Agreement that is
included in these reports; and
5. 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 Bank of America, N.A.
BANC OF AMERICA FUNDING CORPORATION
By:
-----------------------------------------
Name:
Title:
EXHIBIT P
Form of Certification to be Provided by the Securities Administrator to
the Depositor
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2004-A
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
Based on my knowledge, the distribution or servicing information required
to be provided by the Securities Administrator under the Pooling and Servicing
Agreement, dated August 27, 2004, among Banc of America Funding Corporation, as
depositor (the "Depositor"), Xxxxx Fargo Bank, N.A., a Servicer, Bank of
America, N.A., a Servicer, Xxxxx Fargo Bank, N.A., as Securities Administrator,
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 Servicer to the Depositor
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2004-A
I, [______________], a [___________] of [Xxxxx Fargo Bank, N.A.][Bank of
America, N.A.], as servicer (a "Servicer") under the Pooling and Servicing
Agreement, dated August 27, 2004, among Banc of America Funding Corporation, as
depositor (the "Depositor"), Xxxxx Fargo Bank, N.A., a Servicer, Bank of
America, N.A., a Servicer, Xxxxx Fargo Bank, N.A., as Securities Administrator,
and Wachovia Bank, National Association, as Trustee, hereby certify to Banc of
America Funding Corporation (the "Depositor") and each Person, if any, who
"controls" the Depositor within the meaning of the Securities Act of 1933, as
amended, and their respective officers, directors and affiliates, and with the
knowledge and intent that they will rely upon this certification, that:
1. Based on my knowledge, the information relating to the Mortgage
Loans and the servicing thereof submitted by Servicer to Xxxxx Fargo Bank, N.A.
(the "Securities Administrator"), which is used in connection with preparation
of the reports on Form 8-K and the annual report on Form 10-K filed with the
Securities and Exchange Commission, taken as a whole, does not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which such
statements were made, not misleading as of the date of this certification;
2. The servicing information required to be provided to the
Securities Administrator by Servicer under the Pooling and Servicing Agreement
has been provided to the Securities Administrator;
3. I am responsible for reviewing the activities performed by
Servicer under the Pooling and Servicing Agreement and based upon my knowledge
and the annual compliance review required by the Pooling and Servicing
Agreement, and except as disclosed in the Annual Statement of Compliance
delivered to the Securities Administrator and the Annual Independent Public
Accountant's Servicing Report delivered to the Securities Administrator and the
Depositor pursuant to the Pooling and Servicing Agreement, Servicer has, as of
the date of this certification fulfilled its obligations under the Pooling and
Servicing Agreement;
4. The Annual Statement of Compliance and the Annual Independent
Public Accountant's Servicing Report disclose all significant deficiencies
relating to Servicer's compliance with the minimum servicing standards in
accordance with a review conducted in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or similar standard as set forth in the
Pooling and Servicing Agreement; and
5. Servicer shall indemnify and hold harmless the Depositor and each
Person, if any, who "controls" the Depositor within the meaning of the
Securities Act of 1933, as amended, and their respective officers, directors,
agents and affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments and other costs
and expenses arising out of or based upon a breach by Servicer or any of its
officers, directors, agents or affiliates of its obligations under the Pooling
and Servicing Agreements or any material misstatement or omission contained in
this certification, or the negligence, bad faith or willful misconduct of
Servicer in connection with the Pooling and Servicing Agreement or this
certification. If the indemnification provided for herein is unavailable or
insufficient to hold harmless such Persons, then Servicer agrees that it shall
contribute to the amount paid or payable by such Persons as a result of the
losses, claims, damages or liabilities of such Persons in such proportion as is
appropriate to reflect the relative fault of the Depositor, on the one hand, and
Servicer, on the other, in connection with a breach of Servicer's obligations
under the Pooling and Servicing Agreements or any material misstatement or
omission contained in this certification or Servicer's negligence, bad faith or
willful misconduct in connection with the Pooling and Servicing Agreement or
this certification.
Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to them in the Pooling and Servicing Agreement.
[XXXXX FARGO BANK, N.A.][BANK OF AMERICA,
N.A.],
as Servicer
---------------------------------------
Name:
Title:
Dated:
------------------------------------
